Common use of Certain Additional Payments by Employer Clause in Contracts

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Employer shall pay to Employee an additional payment (a "Gross-Up Payment") in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Employee's adjusted gross income.

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall be determined that any payment, award, benefit or distribution (Employee becomes entitled to severance benefits or any acceleration of any paymentother benefits or payments in connection with this Agreement, award, benefit or distribution) by Employer to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (collectively, but determined without regard to the “Total Benefits”) and (ii) any additional payments required under this Section 5) (a "Payment") would of the Total Benefits will be subject to the excise tax imposed by imposes pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), which tax may be imposed if the payments made to Employee are deemed to be “excess parachute payments” within the meaning of Section 280G of the Code, then Employer shall pay to Employee employee an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by Employee, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Benefits and any interest federal, state and penalties imposed with respect thereto) local income taxes, Excise Tax, and Excise Tax imposed FICA and Medicare withholding taxes upon the Gross-Up Paymentpayment provided for by this Section, Employee retains an amount of the Gross-Up Payment will be equal to the sum Total Benefits so that Employee shall be, after payment of (x) all taxes, in the Excise Tax same financial position as if no taxes under Section 4999 had been imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madehim. For purposes of determining the amount of the Gross-Up Paymentthis Section, the Executive shall Employee will be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment Excise tax is to be made, (iior would be) pay applicable payable and state and local income taxes at the highest marginal rate of taxation for in the calendar year in which state and locality of Employee’s residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which that could be obtained from the deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because calculated by assuming that any reduction under Section 68 of the inclusion of the Gross-Up Payment Internal revenue Code in the amount of itemized deductions allowable to Employee applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Employee's adjusted gross income).

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) 8) (a the "PaymentPayments") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") ), or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Employer shall pay to Employee (or to the Internal Revenue Service on behalf of Employee) an additional payment (a "Gross-Up Payment") in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoExcise Tax) and Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined that Employee is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Employee without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Employee. The reduction of the amounts payable hereunder, if applicable, shall be made as elected by Employee. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Employee's adjusted gross incomePayments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall be determined that any payment, award, benefit or distribution (Employee becomes entitled to severance benefits or any acceleration of any paymentother benefits or payments in connection with this Agreement, award, benefit or distribution) by Employer to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (collectively, but determined without regard to the “Total Benefits”) and (ii) any additional payments required under this Section 5) (a "Payment") would of the Total Benefits will be subject to the excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), which tax may be imposed if the payments made to Employee are deemed to be “excess parachute payments” within the meaning of Section 280G of the Code, then Employer shall pay to Employee an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by Employee, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Benefits and any interest federal, state and penalties imposed with respect thereto) local income taxes, Excise Tax, and Excise Tax imposed FICA and Medicare withholding taxes upon the Gross-Up Paymentpayment provided for by this Section, Employee retains an amount of the Gross-Up Payment will be equal to the sum Total Benefits so that Employee shall be, after payment of (x) all taxes, in the Excise Tax same financial position as if no taxes under Section 4999 had been imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madehim. For purposes of determining the amount of the Gross-Up Paymentthis Section, the Executive shall Employee will be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment Excise Tax is to be made, (iior would be) pay applicable payable and state and local income taxes at the highest marginal rate of taxation for in the calendar year in which state and locality of Employee’s residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which that could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because calculated by assuming that any reduction under Section 68 of the inclusion of the Gross-Up Payment Internal Revenue Code in the amount of itemized deductions allowable to Employee applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Employee's adjusted gross income).

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall be determined that any payment, award, benefit or distribution (Employee becomes entitled to severance benefits or any acceleration of any paymentother benefits or payments in connection with this Agreement, award, benefit or distribution) by Employer to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (collectively, but determined without regard to any additional payments required under this Section 5) (a the "PaymentTotal Benefits") would and (ii) any of the Total Benefits will be subject to the excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), which tax may be imposed if the payments made to Employee are deemed to be "excess parachute payments" within the meaning of Section 280G of the Code, then Employer shall pay to Employee an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Employee, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Benefits and any interest federal, state and penalties imposed with respect thereto) local income taxes, Excise Tax, and Excise Tax imposed FICA and Medicare withholding taxes upon the Gross-Up Paymentpayment provided for by this Section, Employee retains an amount of the Gross-Up Payment will be equal to the sum Total Benefits so that Employee shall be, after payment of (x) all taxes, in the Excise Tax same financial position as if no taxes under Section 4999 had been imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madehim. For purposes of determining the amount of the Gross-Up Paymentthis Section, the Executive shall Employee will be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment Excise Tax is to be made, (iior would be) pay applicable payable and state and local income taxes at the highest marginal rate of taxation for in the calendar year in which state and locality of Employee's residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which that could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because calculated by assuming that any reduction under Section 68 of the inclusion of the Gross-Up Payment Internal Revenue Code in the amount of itemized deductions allowable to Employee applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Employee's adjusted gross income).

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event if it shall be determined that any payment, award, benefit payment or distribution (or any acceleration of any payment, award, benefit or distribution) by Employer to or for the Officer's benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee Officer with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Employer Officer shall pay be entitled to Employee receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Employee Officer of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Employee Officer retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 6, if it shall be determined that Officer is entitled to a Gross-Up Payment, but that the Payments and (y) the product of any deductions disallowed because do not exceed 110% of the inclusion greatest amount that could be paid to Officer such that the receipt of Payments would not give rise to any Excise Tax (the "Reduced Amount"), then no Gross-Up Payment in Employee's adjusted gross income shall be made to Officer and the highest applicable marginal rate of federal income taxation for Payments, in the calendar year in which aggregate, shall be reduced to the Reduced Amount. All determinations required to be made under this Section 6, including whether and when a Gross-Up Payment is to be made. For purposes of determining required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm as may be designated by Officer (the "Accounting Firm") which shall provide detailed supporting calculations both to Employer and Officer within 15 business days of the receipt of notice from Officer that there has been a Payment, or such earlier time as is requested by Employer. In the event that the Accounting Firm is serving as accountant or auditor for an individual, entity or group effecting a change in control, Officer shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne by Employer. Any Gross-Up Payment, the Executive as determined pursuant to this Section 6, shall be deemed paid by Employer to (i) pay federal income taxes Officer within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon Employer and Officer. As a result of the uncertainty in the application of Section 4999 of the Code at the highest marginal rates time of federal income taxation for the calendar year in which initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payment is Payments which will not have been made by Employer should have been made ("Underpayment"), consistent with the calculations required to be mademade hereunder. In the event that Employer exhausts its remedies pursuant to Section 6(b) and Officer is required to make a payment of any Excise Tax, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for Accounting firm shall determine the calendar year in which the Gross-Up Payment is to be made, net amount of the maximum reduction in federal income taxes which could Underpayment that has occurred and any such Underpayment shall be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions promptly paid by Employer to or for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the EmployeeOfficer's adjusted gross incomebenefit.

Certain Additional Payments by Employer. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall be determined that any payment, award, benefit or distribution (Employee becomes entitled to severance benefits or any acceleration of any paymentother benefits or payments in connection with this Agreement, award, benefit or distribution) by Employer to or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (collectively, but determined without regard to the “Total Benefits”) and (ii) any additional payments required under this Section 5) (a "Payment") would of the Total Benefits will be subject to the excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"’), which tax may be imposed if the payments made to Employee are deemed to be “excess parachute payments” within the meaning of Section 280G of the Code, then Employer shall pay to Employee an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that the net amount retained by Employee, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Benefits and any interest federal, state and penalties imposed with respect thereto) local income taxes, Excise Tax, and Excise Tax imposed FICA and Medicare withholding taxes upon the Gross-Up Paymentpayment provided for by this Section, Employee retains an amount of the Gross-Up Payment will be equal to the sum Total Benefits so that Employee shall be, after payment of (x) all taxes, in the Excise Tax same financial position as if no taxes under Section 4999 had been imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madehim. For purposes of determining the amount of the Gross-Up Paymentthis Section, the Executive shall Employee will be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment Excise Tax is to be made, (iior would be) pay applicable payable and state and local income taxes at the highest marginal rate of taxation for in the calendar year in which state and locality of Employee’s residence on the Gross-Up Payment is to be madeDate of Termination, net of the maximum reduction in federal income taxes which that could be obtained from deduction of such state and local taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because calculated by assuming that any reduction under Section 68 of the inclusion of the Gross-Up Payment Internal Revenue Code in the amount of itemized deductions allowable to Employee applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Employee's adjusted gross income).