Common use of SPECIAL REIMBURSEMENT Clause in Contracts

SPECIAL REIMBURSEMENT. (a) Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any of its subsidiaries, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would subject the Executive to the excise tax imposed under Section 4999 of the Code (or any successor section thereto) the "Excise Tax"), and if such Total Payments less the Excise Tax is less than the maximum amount of Total Payments which could otherwise be payable to the Executive without the imposition of the Excise Tax, then, to the extent necessary to eliminate the imposition of the Excise Tax (and after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement), (A) the cash Severance Payments shall first be reduced (if necessary, to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of the tax counsel referred to in clause (ii); and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.

SPECIAL REIMBURSEMENT. (a) Notwithstanding any other provisions of this Agreement, in In the event that the Executive becomes entitled to the Severance Payments, if any payment or benefit paid or payable, or received or to be received received, by or on behalf of the Executive in connection with a Change in Control or the termination of the Executive's employment (employment, whether any such payments or benefits are pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any of its subsidiaries, any Person whose actions result in a Change in Control Person, or any Person affiliated with otherwise (the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") ), will or would be subject the Executive to the excise tax imposed under Section section 4999 of the Code (or any successor section thereto) the "Excise Tax"), and if such Total Payments less the Excise Tax is less than the maximum amount of Total Payments which could otherwise be payable Company shall pay to the Executive without an additional amount (the imposition of the Excise Tax, then, "Gross-Up Payment") which amount shall be equal to the extent necessary sum of (a) the amount of such Excise Tax imposed (determined without regard to eliminate the imposition Gross-Up Payment), and (b) the product of the (i) such Excise Tax (determined without regard to the Gross-Up Payment), and after taking (ii) the Aggregate Combined Marginal Tax Rate. For purposes of this Section 6.2, "Aggregate Combined Marginal Tax Rate" means (and shall equal) the sum of (A) the combined highest marginal state and local income tax rates applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted downward to take into account the tax deductibility, if any, of such state and local income taxes), plus (B) the rate of excise tax imposed on "golden parachute" payments under Section 4999 of the Code, plus (C) the highest marginal federal income tax rate applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted upward to take into account any reduction in the Total Payments provided by reason of otherwise allowable itemized deductions attributable to Section 280G 68 of the Code in such other plan, arrangement or agreementCode), plus (AD) the cash Severance Payments shall first be reduced (if necessary, tax rate applicable to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no 129 the Executive under the hospital insurance portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(BFederal Insurance Contributions Act under Section 3101(b) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of for the tax counsel referred to year in clause (ii); and (iv) which the value of any nonExecutive receives the Gross-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeUp Payment.

SPECIAL REIMBURSEMENT. (a) Notwithstanding any other provisions of this Agreement, in In the event that the Executive becomes entitled to the Severance Payments, if any payment or benefit paid or payable, or received or to be received received, by or on behalf of the Executive in connection with a Change in Control or the termination of the Executive's employment (employment, whether any such payments or benefits are pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any of its subsidiaries, any Person whose actions result in a Change in Control Person, or any Person affiliated with otherwise (the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") ), will or would be subject the Executive to the excise tax imposed under Section section 4999 of the Code (or any successor section thereto) the "Excise Tax"), and if such Total Payments less the Excise Tax is less than the maximum amount of Total Payments which could otherwise be payable Company shall pay to the Executive without an additional amount (the imposition of the Excise Tax, then, "Gross-Up Payment") which amount shall be equal to the extent necessary sum of (a) the amount of such Excise Tax imposed (determined without regard to eliminate the imposition Gross-Up Payment), and (b) the product of the (i) such Excise Tax (determined without regard to the Gross-Up Payment), and after taking (ii) the Aggregate Combined Marginal Tax Rate. For purposes of this Section 6.2, "Aggregate Combined Marginal Tax Rate" means (and shall equal) the sum of (A) the combined highest marginal state and local income tax rates applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted downward to take into account the tax deductibility, if any, of such state and local income taxes), plus (B) the rate of excise tax imposed on "golden parachute" payments under Section 4999 of the Code, plus (C) the highest marginal federal income tax rate applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted upward to take into account any reduction in the Total Payments provided by reason of otherwise allowable itemized deductions attributable to Section 280G 68 of the Code in such other plan, arrangement or agreementCode), plus (AD) the cash Severance Payments shall first be reduced (if necessary, tax rate applicable to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no 61 the Executive under the hospital insurance portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(BFederal Insurance Contributions Act under Section 3101(b) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of for the tax counsel referred to year in clause (ii); and (iv) which the value of any nonExecutive receives the Gross-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeUp Payment.

SPECIAL REIMBURSEMENT. (a) Notwithstanding any other provisions of this Agreement, in In the event that the Executive becomes entitled to the Severance Payments, if any payment or benefit paid or payable, or received or to be received received, by or on behalf of the Executive in connection with a Change in Control or the termination of the Executive's employment (employment, whether any such payments or benefits are pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any of its subsidiaries, any Person whose actions result in a Change in Control Person, or any Person affiliated with otherwise (the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") ), will or would be subject the Executive to the excise tax imposed under Section section 4999 of the Code (or any successor section thereto) the "Excise Tax"), and if such Total Payments less the Excise Tax is less than the maximum amount of Total Payments which could otherwise be payable Company shall pay to the Executive without an additional amount (the imposition of the Excise Tax, then, "Gross-Up Payment") which amount shall be equal to the extent necessary sum of (a) the amount of such Excise Tax imposed (determined without regard to eliminate the imposition Gross-Up Payment), and (b) the product of the (i) such Excise Tax (determined without regard to the Gross-Up Payment), and after taking (ii) the Aggregate Combined Marginal Tax Rate. For purposes of this Section 6.2, "Aggregate Combined Marginal Tax Rate" means (and shall equal) the sum of (A) the combined highest marginal state and local income tax rates applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted downward to take into account the tax deductibility, if any, of such state and local income taxes), plus (B) the rate of excise tax imposed on "golden parachute" payments under Section 4999 of the Code, plus (C) the highest marginal federal income tax rate applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted upward to take into account any reduction in the Total Payments provided by reason of otherwise allowable itemized deductions attributable to Section 280G 68 of the Code in such other plan, arrangement or agreementCode), plus (AD) the cash Severance Payments shall first be reduced (if necessary, tax rate applicable to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no the Executive under the hospital insurance portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(BFederal Insurance Contributions Act under Section 3101(b) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of for the tax counsel referred to year in clause (ii); and (iv) which the value of any nonExecutive receives the Gross-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeUp Payment.

SPECIAL REIMBURSEMENT. (a) Notwithstanding any other provisions of this Agreement, in In the event that the Executive becomes entitled to the Severance Payments, if any payment or benefit paid or payable, or received or to be received received, by or on behalf of the Executive in connection with a Change in Control or the termination of the Executive's employment (employment, whether any such payments or benefits are pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or Company, any of its subsidiaries, any Person whose actions result in a Change in Control Person, or any Person affiliated with otherwise (the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") ), will or would be subject the Executive to the excise tax imposed under Section section 4999 of the Code (or any successor section thereto) the "Excise Tax"), and if such Total Payments less the Excise Tax is less than the maximum amount of Total Payments which could otherwise be payable Company shall pay to the Executive without an additional amount (the imposition of the Excise Tax, then, "Gross-Up Payment") which amount shall be equal to the extent necessary sum of (a) the amount of such Excise Tax imposed (determined without regard to eliminate the imposition Gross-Up Payment), and (b) the product of the (i) such Excise Tax (determined without regard to the Gross-Up Payment), and after taking (ii) the Aggregate Combined Marginal Tax Rate. For purposes of this Section 6.2, "Aggregate Combined Marginal Tax Rate" means (and shall equal) the sum of (A) the combined highest marginal state and local income tax rates applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted downward to take into account the tax deductibility, if any, of such state and local income taxes), plus (B) the rate of excise tax imposed on "golden parachute" payments under Section 4999 of the Code, plus (C) the highest marginal federal income tax rate applicable for the tax year in which the Executive receives the Gross-Up Payment (adjusted upward to take into account any reduction in the Total Payments provided by reason of otherwise allowable itemized deductions attributable to Section 280G 68 of the Code in such other plan, arrangement or agreementCode), plus (AD) the cash Severance Payments shall first be reduced (if necessary, tax rate applicable to zero), and (B) all other non-cash Severance Payments shall next be reduced (if necessary, to zero). For purposes of this limitation (i) no 112 the Executive under the hospital insurance portion of the Total Payments the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the Date of Termination shall be taken into account, (ii) no portion of the Total Payments shall be taken into account which in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, including by reason of section 280G(b)(4)(A) of the Code, (iii) the Severance Payments shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii)) in their entirety constitute reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(BFederal Insurance Contributions Act under Section 3101(b) of the Code or are otherwise not subject to disallowance as deductions, in the opinion of for the tax counsel referred to year in clause (ii); and (iv) which the value of any nonExecutive receives the Gross-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the CodeUp Payment.