Internal Revenue Code Section 280g Gross Up Clause Samples

Internal Revenue Code Section 280g Gross Up. (a) In the event that it shall be determined that any payment (other than the payment provided for in this Section 18) or distribution of any type to or for the benefit of Employee, by the Parent, any affiliate of the Parent, any “Person” (within the meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, a “Person”) who acquires ownership or effective control of the Parent or ownership of a substantial portion of the Parent’s assets (within the meaning of Section 280G of the Code, and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Total Payments”), is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”), then Employee shall be entitled to receive 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 any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) All mathematical determinations, and all determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), that are required to be made under this Section 18, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Section 18(b), shall be made by an independent accounting firm selected by Employee from among the six (6) largest accounting firms in the United States (the “Accounting Firm”), which shall provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and Employee by no later than ten (10) days following the date of termination, if applicable, or such earlier time as is requested by the Company or Employee (if Employee reasonably believes that any of the Total Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by Employee, it shal...

Internal Revenue Code Section 280g Gross Up. (a) If as a result of a Change in Control the Executive becomes entitled to acceleration of benefits under this Salary Continuation Agreement or under any other plan or agreement of or with the Bank or NewMil Bancorp, Inc. (together, the "Total Benefits"), and if any of the Total Benefits will be subject to the Excise Tax as set forth in Sections 280G and 4999 of the Internal Revenue Code of 1986 (the "Excise Tax"), the Bank shall pay to the Executive the following additional amounts, consisting of (1) a payment equal to the Excise Tax payable by the Executive on the Total Benefits under Section 4999 of the Internal Revenue Code (the "Excise Tax Payment"), and (2) a payment equal to the amount necessary to provide the Excise Tax Payment net of all income, payroll and excise taxes. Together, the additional amounts described in clauses (1) and (2) are referred to in this Agreement as the "Gross-Up Payment Amount." Payment of the Gross-Up Payment Amount shall be made in addition to the amount set forth in Section 2.4 hereof. (b) For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (1) any other payments or benefits received or to be received by the Executive (whether under the terms of this Agreement or any other agreement, or other plan or arrangement with the Bank or NewMil Bancorp, Inc., any person whose actions result in a Change in Control or any person affiliated with NewMil Bancorp, Inc. or such person) in connection with a Change in Control or the Executive's termination of employment shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Internal Revenue Code, and all "excess parachute payments," within the meaning of Section 280G(b)(1), shall be treated as subject to the Excise Tax, unless in the opinion of the certified public accounting firm that is retained by NewMil Bancorp, Inc. as of the date immediately before the Change in Control (the "Accounting Firm"), such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4) of the Internal Revenue Code, or are otherwise not subject to the Excise Tax, (2) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of the Accounting...

Internal Revenue Code Section 280g Gross Up. Notwithstanding anything in this Agreement to the contrary, if any of the benefits provided for under this Agreement, together with any other payments or benefits that Participant has the right to receive (such other payments and benefits, together with the benefits provided for herein, are referred to as the “Total Payments”), would constitute an “excess parachute payment,” as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) (an “Excess Parachute Payment”), the Company (or its successor) shall pay to the Participant an amount equal to the sum of (i) any excise taxes or other taxes due as a result thereof, and (ii) any interest, fines and penalties resulting from such overpayment, plus (iii) an amount necessary to reimburse the Participant substantially for any income, excise or other taxes payable by the Participant with respect to the amounts specified in (i) and (ii) above, and the reimbursement provided by this clause (iii). Such tax gross up payment shall be made to Participant no later than the due date of the Participant’s tax return reporting the amount of such tax.

Internal Revenue Code Section 280g Gross Up. Notwithstanding anything in this Agreement to the contrary, if any of the payments provided for under this Agreement, together with any other payments that Executive has the right to receive (such other payments together with the Agreement Payments are referred to as the “Total Payments”), would constitute an “excess parachute payment,” as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”) (an “Excess Parachute Payment”), the Employer (or its successor) shall pay to the Executive an amount equal to the sum of (i) any excise taxes or other taxes due as a result thereof, and (ii) any interest, fines and penalties resulting from such overpayment, plus (iii) an amount necessary to reimburse the Executive substantially for any income, excise or other taxes payable by the Executive with respect to the amounts specified in (i) and (ii) above, and the reimbursement provided by this clause (iii). Such tax gross up payment shall be made to Executive no later than the due date of the Executive’s tax return reporting the amount of such tax.

Internal Revenue Code Section 280g Gross Up of Article 7 of the Agreement is hereby amended by deleting it in its entirety and replacing it with the following Section 7.14:

Internal Revenue Code Section 280g Gross Up