Common use of Determination of Gross-Up Payment Clause in Contracts

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by tax counsel selected by the independent public accounting firm then retained by the Company to audit its financial statements and acceptable to the Company ("Tax Counsel"), which shall provide detailed supporting calculations to both the Company and Executive within 15 business days of the date of termination, if applicable, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company shall pay the initial Gross-Up Payment, if any, as determined pursuant to this Section 10(b), to Executive within five business days of the receipt of Tax Counsel's determination, provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then the part of the Gross Up Payment attributable to such Payment shall be paid to Executive at the time such Payment is due. In either case, the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicable. If Tax Counsel determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that he has substantial authority not to report any Excise Tax on his Federal income tax return. Any determination by Tax Counsel meeting the requirements of this Section 10(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the following sentence based on a determination that additional Gross-Up Payments should have been made, consistent with the calculations required to be made under this Section 10 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). If the Company exhausts its remedies pursuant to Section 10(c), and Executive is required to make a payment of any Excise Tax, Tax Counsel shall determine the amount of the Gross-Up Underpayment that has occurred and the Company shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive, subject to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c7(c), all determinations required to be made under this Section 107, including the determination of whether a Gross-Up Payment is required and of required, the amount of any such the payments constituting parachute payments, and the amount of the Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by tax counsel selected by the Sun’s independent auditors or such other certified public accounting firm then retained by the Company to audit its financial statements and reasonably acceptable to Executive as may be designated by Sun (the Company ("Tax CounselAccounting Firm"), ) which shall provide detailed supporting calculations both to both the Company Sun and Executive within 15 fifteen business days of the Executive’s date of termination, if applicable, termination or such earlier time as is any other date reasonably requested by Sun or Executive on which a determination under Section 7 is necessary or advisable. Within five days of the Company, provided that any determination that an Excise Tax is payable receipt by Executive shall be made on and Sun of the basis Accounting Firm’s determination of substantial authority. The Company shall pay the initial Gross-Up Payment, if any, as determined pursuant to this Section 10(b), to Executive within five business days Sun shall pay the amount of the receipt of Tax Counsel's determination, provided, however, that, if any such Gross-Up Payment to which an Excise Tax relates was not payable or distributable before that date, then the part applicable taxing authorities for the benefit of the Gross Up Payment attributable to such Payment shall be paid to Executive at the time such Payment is due. In either case, the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicableExecutive. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by Executive, it Sun shall furnish cause the Accounting Firm to provide Executive and Sun with a written an opinion that he Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report any an Excise Tax on his Federal Executive’s federal income tax return. Any determination by Tax Counsel meeting the requirements of this Section 10(b) Accounting Firm shall be binding upon Executive and Sun. As a result of the Company and Executive; subject only to payments pursuant to uncertainty in the following sentence based on a application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up Payments which will not have been made by Sun should have been mademade (“Underpayment”), consistent with the calculations required to be made under this Section 10 (hereunder. In the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). If the Company event that Sun exhausts its remedies pursuant to Section 10(c), 7(c) and Executive thereafter is required to make a payment of any Excise Tax, Tax Counsel the Accounting Firm shall determine the amount of the Gross-Up Underpayment that has occurred and the Company shall promptly pay any such Gross-Up Underpayment shall be promptly paid by Sun to or the applicable taxing authorities for the benefit of Executive, subject Executive (or directly to any withholding Executive in the event Executive previously paid the related tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counselamounts).

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c), all All determinations required to be made under this Section 107, including the determination of whether and when a Gross-Up Payment is required and of the amount of any such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by tax counsel selected by the independent a nationally recognized certified public accounting firm then retained as may be mutually agreed by the Company to audit its financial statements and acceptable to the Company Employee ("Tax Counsel"), the “Accounting Firm”) which shall provide detailed supporting calculations both to both the Company and Executive Employee within 15 ten (10) business days of the date receipt of termination, if applicablenotice from Employee that Payments were made, or such earlier time as is requested required by the Company, ; provided that for purposes of determining the amount of any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company shall pay the initial Gross-Up Payment, if anyEmployee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Employee’s residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(b)7.2, shall be paid by the Company to Executive within five business days of Employee (or to the receipt of Tax Counsel's determination, appropriate taxing authority on Employee’s behalf) when due; provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then such payment shall be made no later than the part end of the Gross Up Payment attributable Employee’s taxable year following the taxable year in which the Employee remits such taxes to such Payment shall be paid to Executive at the time such Payment is due. In either case, the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicableapplicable taxing authority. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by ExecutiveEmployee, it shall furnish Executive with a written opinion that he has substantial authority not so indicate to report any Excise Tax on his Federal income tax returnEmployee in writing. Any determination by Tax Counsel meeting the requirements of this Section 10(b) Accounting Firm shall be binding upon the Company and Executive; subject only to payments pursuant to Employee. As a result of the following sentence based on a determination uncertainty in the application of Code Section 4999, it is possible that additional the amount of the Gross-Up Payments should have been made, consistent with Payment determined by the calculations Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually required to be made under this Section 10 paid by Employee to the applicable taxing authority (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up “Underpayment"”). If In the event that the Company exhausts its remedies pursuant to Section 10(c), hereunder and Executive Employee thereafter is required to make a payment of any Excise Tax, Tax Counsel the Accounting Firm shall determine the amount of the Gross-Up Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company shall promptly pay any such Gross-Up Underpayment to or for the benefit of ExecutiveEmployee; provided, subject however, that such Underpayment shall be made no later than the end of the Employee’s taxable year following the taxable year in which the Employee remits the Excise Tax to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counselapplicable taxing authority.

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by tax counsel selected by the independent public accounting firm then retained by the Company to audit its financial statements and acceptable to the Company ("Tax Counsel"), which shall provide detailed supporting calculations to both the Company and Executive within 15 business days of the date of terminationTermination, if applicable, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company shall pay the initial Gross-Up Payment, if any, as determined pursuant to this Section 10(b), to Executive within five business days of the receipt of Tax Counsel's determination, provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then the part of the Gross Up Payment attributable to such Payment shall be paid to Executive at the time such Payment is due. In either case, the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicable. If Tax Counsel determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that he has substantial authority not to report any Excise Tax on his Federal income tax return. Any determination by Tax Counsel meeting the requirements of this Section 10(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the following sentence based on a determination that additional Gross-Up Payments should have been made, consistent with the calculations required to be made under this Section 10 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). If the Company exhausts its remedies pursuant to Section 10(c), and Executive is required to make a payment of any Excise Tax, Tax Counsel shall determine the amount of the Gross-Up Underpayment that has occurred and the Company shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive, subject to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c7(c), all determinations required to be made under this Section 107, including the determination of whether a Gross-Up Payment is required and of required, the amount of any such the payments constituting parachute payments, and the amount of the Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by tax counsel selected by the Sun's independent auditors or such other certified public accounting firm then retained by the Company to audit its financial statements and reasonably acceptable to Executive as may be designated by Sun (the Company ("Tax CounselAccounting Firm"), ) which shall provide detailed supporting calculations both to both the Company Sun and Executive within 15 fifteen business days following the receipt of the date of termination, if applicablenotice from Executive that there has been a Payment, or such earlier time as is requested by Sun. All fees and expenses of the Company, provided that any determination that an Excise Tax is payable by Executive Accounting Firm shall be made on the basis of substantial authorityborne solely by Sun. The Company shall pay the initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10(b)7, to Executive within five business days of the receipt of Tax Counsel's determination, provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then the part of the Gross Up Payment attributable to such Payment shall be paid by Sun to the Executive at not later than the time such Payment is due. In either case, due date for the Gross Up Payment shall be subject to payment of any withholding tax obligation determined by Tax Counsel to be applicableExcise Tax. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by Executive, it Sun shall furnish cause the Accounting Firm to provide Executive and Sun with a written an opinion that he Sun has substantial authority under the Internal Revenue Code and Regulations not to report any an Excise Tax on his Federal Executive's federal income tax return. Any determination by Tax Counsel meeting the requirements of this Section 10(b) Accounting Firm shall be binding upon Executive and Sun. As a result of the Company and Executive; subject only to payments pursuant to uncertainty in the following sentence based on a application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up Payments which will not have been made by Sun should have been mademade ("Underpayment"), consistent with the calculations required to be made under this Section 10 (hereunder. In the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). If the Company event that Sun exhausts its remedies pursuant to Section 10(c), 7(c) and Executive thereafter is required to make a payment of any Excise Tax, Tax Counsel the Accounting Firm shall determine the amount of the Gross-Up Underpayment that has occurred and the Company shall promptly pay any such Gross-Up Underpayment shall be promptly paid by Sun to or for the benefit of Executive, subject to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c7(c), all determinations required to be made under this Section 107, including the determination of whether a Gross-Up Payment is required and of required, the amount of any such the payments constituting parachute payments, and the amount of the Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by tax counsel selected by the Sun’s independent auditors or such other certified public accounting firm then retained by the Company to audit its financial statements and reasonably acceptable to Executive as may be designated by Sun (the Company ("Tax Counsel"“Accounting Firm”), which shall provide detailed supporting calculations both to both the Company Sun and Executive within 15 fifteen business days of the Executive’s date of termination, if applicable, termination or such earlier time as is any other date reasonably requested by Sun or Executive on which a determination under this Section 7 is necessary or advisable. Within five days of the Company, provided that any determination that an Excise Tax is payable receipt by Executive shall be made on and Sun of the basis Accounting Firm’s determination of substantial authority. The Company shall pay the initial Gross-Up Payment, if any, as determined pursuant to this Section 10(b), to Executive within five business days Sun shall pay the amount of the receipt of Tax Counsel's determination, provided, however, that, if any such Gross-Up Payment to which an Excise Tax relates was not payable or distributable before that date, then the part applicable taxing authorities for the benefit of the Gross Up Payment attributable to such Payment shall be paid to Executive at the time such Payment is due. In either case, the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicableExecutive. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by Executive, it Sun shall furnish cause the Accounting Firm to provide Executive and Sun with a written an opinion that he Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report any an Excise Tax on his Federal Executive’s federal income tax return. Any determination by Tax Counsel meeting the requirements of this Section 10(b) Accounting Firm shall be binding upon Executive and Sun. As a result of the Company and Executive; subject only to payments pursuant to uncertainty in the following sentence based on a application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up Payments which will not have been made by Sun should have been mademade (“Underpayment”), consistent with the calculations required to be made under this Section 10 (hereunder. In the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). If the Company event that Sun exhausts its remedies pursuant to Section 10(c), 7(c) and Executive thereafter is required to make a payment of any Excise Tax, Tax Counsel the Accounting Firm shall determine the amount of the Gross-Up Underpayment that has occurred and the Company shall promptly pay any such Gross-Up Underpayment shall be promptly paid by Sun to or the applicable taxing authorities for the benefit of Executive, subject Executive (or directly to any withholding Executive in the event Executive previously paid the related tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counselamounts).

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c)paragraph (iii) below, all determinations required to be made under this Section 1018(c), including the determination of whether a Gross-Up Payment is required and of the amount of any such the Gross-Up Payment, shall will be made by tax counsel a national certified public accounting firm (the “Accounting Firm”) selected by the independent public accounting firm then retained by the Company to audit its financial statements and acceptable to the Company ("Tax Counsel"), which Company. The Accounting Firm shall provide detailed supporting calculations to both the Executive and the Company and Executive within 15 business fifteen (15) days after the later of the date of termination, if applicable, the Change in Control (or such earlier time as is requested any other change in ownership or effective control of the Company that triggers application of the Excise Tax) or the date of the termination of employment of the Executive with the Company. All fees and expenses of the Accounting Firm will be borne solely by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on . For purposes of determining the basis amount of substantial authority. The Company shall pay the initial Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the actual reduction in federal income taxes which is reasonably expected to result from the deduction of such state or local taxes if anypaid in such year (determined, as however, with regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment determined pursuant to this Section 10(b), to Executive within five business days of the receipt of Tax Counsel's determination, provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then the part of the Gross Up Payment attributable to such Payment shall paragraph (ii) will be paid to the Executive at by the time such Payment is due. In either case, Company within five (5) days after it receives the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicableAccounting Firm’s determination. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall will furnish the Executive with a written opinion that he has substantial authority not failure to report any the Excise Tax on his Federal income Executive’s applicable federal tax returnreturn will not result in the imposition of a negligence or similar penalty. Any determination by Tax Counsel meeting the requirements of this Section 10(b) shall Accounting Firm will be binding upon on both the Executive and the Company. Notwithstanding the foregoing, as a result of uncertainty in applying Section 4999 of the Code, it is possible that the Company and Executive; subject only to payments pursuant to the following sentence based on a determination that additional will not have made Gross-Up Payments that it should have been made, consistent with the calculations required to be made under this Section 10 hereunder (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up an “Underpayment"”). If the Company exhausts its remedies pursuant to Section 10(c), paragraph (iii) hereof and the Executive is thereafter required to make a payment of pay any Excise Tax, Tax Counsel shall the Accounting Firm will determine the amount of the Gross-Up Underpayment that has occurred Underpayment, inform the Executive and the Company shall promptly in writing of the Underpayment, and, within five (5) days of receiving such written report, the Company will pay any the amount of such Gross-Up Underpayment to or for the benefit of Executive, subject to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 10(c)paragraph (iii) below, all determinations required to be made under this Section 1017(c), including the determination of whether a Gross-Up Payment is required and of the amount of any such the Gross-Up Payment, shall will be made by tax counsel a national certified public accounting firm (the “Accounting Firm”) selected by the independent public accounting firm then retained by the Company to audit its financial statements and acceptable to the Company ("Tax Counsel"), which Company. The Accounting Firm shall provide detailed supporting calculations to both the Executive and the Company and Executive within 15 business fifteen (15) days after the later of the date of termination, if applicable, the Change in Control (or such earlier time as is requested any other change in ownership or effective control of the Company that triggers application of the Excise Tax) or the date of the termination of employment of the Executive with the Company. All fees and expenses of the Accounting Firm will be borne solely by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on . For purposes of determining the basis amount of substantial authority. The Company shall pay the initial Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the actual reduction in federal income taxes which is reasonably expected to result from the deduction of such state or local taxes if anypaid in such year (determined, as however, with regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment determined pursuant to this Section 10(b), to Executive within five business days of the receipt of Tax Counsel's determination, provided, however, that, if any Payment to which an Excise Tax relates was not payable or distributable before that date, then the part of the Gross Up Payment attributable to such Payment shall paragraph (ii) will be paid to the Executive at by the time such Payment is due. In either case, Company within five (5) days after it receives the Gross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicableAccounting Firm’s determination. If Tax Counsel the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall will furnish the Executive with a written opinion that he has substantial authority not failure to report any the Excise Tax on his Federal income Executive’s applicable federal tax returnreturn will not result in the imposition of a negligence or similar penalty. Any determination by Tax Counsel meeting the requirements of this Section 10(b) shall Accounting Firm will be binding upon on both the Executive and the Company. Notwithstanding the foregoing, as a result of uncertainty in applying Section 4999 of the Code, it is possible that the Company and Executive; subject only to payments pursuant to the following sentence based on a determination that additional will not have made Gross-Up Payments that it should have been made, consistent with the calculations required to be made under this Section 10 hereunder (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up an “Underpayment"”). If the Company exhausts its remedies pursuant to Section 10(c), paragraph (iii) hereof and the Executive is thereafter required to make a payment of pay any Excise Tax, Tax Counsel shall the Accounting Firm will determine the amount of the Gross-Up Underpayment that has occurred Underpayment, inform the Executive and the Company shall promptly in writing of the Underpayment, and, within five (5) days of receiving such written report, the Company will pay any the amount of such Gross-Up Underpayment to or for the benefit of Executive, subject to any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the fees and disbursements of Tax Counsel.