Common use of Gross-Up Provision Clause in Contracts

Gross-Up Provision. (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (herein all collectively referred to as the “Total Payments”), would constitute an “excess parachute payment,” the Company shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 18) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to the Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that after payment by the net Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum 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 the Executive'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 tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after inclusion of the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph's adjusted gross income.

Gross-Up Provision. (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (herein all collectively referred to as the “Total Payments”), would constitute an “excess parachute payment,” the Company shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the “Code”) (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total PaymentsExcise Tax”), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the a “Gross-Up Payment”) in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum 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 Executive’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 up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay 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: (1) if the Executive is terminated as described up Payment in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the adjusted gross income. Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then and the Company shall promptly reimburse use their best efforts to mitigate the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal cost to the additional taxes imposed on the Executive due to the Company’s reimbursement Company of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the making a Gross-Up up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph.

Gross-Up Provision. (i) Notwithstanding In the event that any other provision payment or benefit received or to be received by the Employee in connection with a Change in Control of the Company or the termination of the Employee's employment, whether such payments or benefits are received pursuant to the terms of this Agreement, if any portion of the Termination Payment, Accrued Benefits Agreement or any other payment plan, arrangement or benefit under this Agreementagreement with the Company, or payments to and for the benefit of the Executive under any other agreement or plan person whose actions result in a Change in Control of the Company or any of its Affiliates, regardless of whether person affiliated with the Company or such payment or benefit was paid or provided for prior to the Covered Termination person (herein all collectively referred to as the “such payments and benefits being hereinafter called "Total Payments”"), would constitute an “excess parachute payment,” be subject (in whole or part) to the Company shall pay Executive an additional amount tax (the “Gross-Up Payment”"Excise Tax") such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), any interest charges or penalties the Company shall pay to the Employee such additional amounts (the "Gross-Up Payment") as may be necessary to place the Employee in respect the same after-tax position as if no portion of the imposition Total Payments had been subject to the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Employee shall repay to the Company, at the time that the amount of such excise reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to the reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax (but not any imposed on the Gross-Up Payment being repaid by the Employee to the extent that such repayment results in a reduction in Excise Tax and/or federal, state or local income tax, or employment taxtax deduction) plus interest on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon amount of such repayment at the payment rate provided for by this in Section 9(c), shall be equal 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to the Total Payments. For purposes of determining exceed the amount taken into account hereunder (including by reason of any payment the existence of which cannot be determined at the time of the Gross-Up Payment, Executive the Company shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the make an additional Gross-Up Payment is to be made and state and local income taxes in respect of such excess (plus any interest, penalties or additions payable by the Employee with respect of such excess) at the highest marginal rate of taxation in time that the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction amount of such state and local taxesexcess is finally determined. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 Employee and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse each reasonably cooperate with the Executive for other in connection with any administrative or judicial proceedings concerning the existence or amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal liability for Excise Tax with respect to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraphTotal Payments.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the “Code”) (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total PaymentsExcise Tax”), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the a “Gross-Up Payment”) in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum 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 Executive’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 up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay 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: (1) if the Executive is terminated as described up Payment in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the adjusted gross income. Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then and the Company shall promptly reimburse use their best efforts to mitigate the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal cost to the additional taxes imposed on the Executive due to the Company’s reimbursement Company of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the making a Gross-Up up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 21) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to the Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that after payment by the net Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum 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 the Executive'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 tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after inclusion of the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph's adjusted gross income.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum 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 Executive'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 up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay 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: (1) if the Executive is terminated as described up Payment in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph's adjusted gross income.