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

Determination of Gross-Up Payment. Subject to the provisions of Section 3(c), all determinations required under this Section 3, including whether a Gross-Up Payment is required, the amount of the Payments constituting “excess parachute payments, ” and the amount of the Gross-Up Payment, shall be made by the Accounting Firm, which shall provide detailed supporting calculations both to you and the Company within fifteen days of any date reasonably requested by you or the Company on which a determination under this Section 3 is necessary or advisable. The Company shall pay you in cash the initial Gross-Up Payment within five days of the receipt by you and the Company of the Accounting Firm's determination; provided, however, that in any event such payment will be made by the December 31 of the calendar year following the calendar year in which you pay the Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by you, the Company shall cause the Accounting Firm to provide you with an opinion that the Accounting Firm has substantial authority under the Code and Regulations not to report an Excise Tax on your federal income tax return. Any determination by the Accounting Firm shall be binding upon you and the Company. If the initial Gross-Up Payment is insufficient to completely place you in the same after-tax economic position that you would have enjoyed if the Excise Tax had not applied to the Payments (hereinafter an "Underpayment"), the Company, after exhausting its remedies under Section 3(c) below, shall promptly pay you in cash an additional Gross-Up Payment in respect of the Underpayment.

Determination of Gross-Up Payment. Subject to the provisions of Section 3(c), all determinations required under this Section 3, including whether a Gross-Up Payment is required, the amount of the Payments constituting “excess parachute payments, ” and the amount of the Gross-Up Payment, shall be made by the Accounting Firm, which shall provide detailed supporting calculations both to you and the Company within fifteen days of any date reasonably requested by you or the Company on which a determination under this Section 3 is necessary or advisable. The Company shall pay you in cash the initial Gross-Up Payment within five days of the receipt by you and the Company of the Accounting Firm's determination; provided, however, that in any event such payment will be made by the December 31 of the calendar year following the calendar year in which you pay the Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by you, the Company shall cause the Accounting Firm to provide you with an opinion that the Accounting Firm has substantial authority under the Code and Regulations not to report an Excise Tax on your federal income tax return. Any determination by the Accounting Firm shall be binding upon you and the Company. If the initial Gross-Up Payment is insufficient to completely place you in the same after-tax economic position that you would have enjoyed if the Excise Tax had not applied to the Payments (hereinafter an "“Underpayment"”), the Company, after exhausting its remedies under Section 3(c) below, shall promptly pay you in cash an additional Gross-Up Payment in respect of the Underpayment.

Determination of Gross-Up Payment. Subject to the provisions of Section 3(c)paragraph (iii) below, all determinations required under this Section 317(c), including whether a Gross-Up Payment is required, the amount of the Payments constituting “excess parachute payments, ” required and the amount of the Gross-Up Payment, shall will be made by a national certified public accounting firm (the “Accounting Firm, which ”) selected by the Company. The Accounting Firm shall provide detailed supporting calculations to both to you the Executive and the Company within fifteen (15) days after the later of the date of the Change in Control (or any date reasonably requested by you other change in ownership or effective control of the Company that triggers application of the Excise Tax) or the Company 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. For purposes of determining the amount of the 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 paid in such year (determined, however, with regard to limitations on which a determination under this Section 3 is necessary or advisabledeductions based upon the amount of the Executive’s adjusted gross income). The Company shall pay you in cash the initial Gross-Up Payment determined pursuant to this paragraph (ii) will be paid to the Executive by the Company within five (5) days of the receipt by you and the Company of after it receives the Accounting Firm's ’s determination; provided, however, that in any event such payment will be made by the December 31 of the calendar year following the calendar year in which you pay the Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by youthe Executive, it will furnish the Company shall cause the Accounting Firm to provide you Executive with an a written opinion that the Accounting Firm has substantial authority under the Code and Regulations not failure to report an the Excise Tax on your Executive’s applicable federal income tax returnreturn will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall will be binding upon you on both the Executive and the Company. If Notwithstanding the initial foregoing, as a result of uncertainty in applying Section 4999 of the Code, it is possible that the Company will not have made Gross-Up Payment Payments that it should have made hereunder (an “Underpayment”). If the Company exhausts its remedies pursuant to paragraph (iii) hereof and the Executive is insufficient thereafter required to completely place you in the same after-tax economic position that you would have enjoyed if the pay any Excise Tax had not applied to the Payments (hereinafter an "Underpayment")Tax, the Company, after exhausting its remedies under Section 3(c) below, shall promptly pay you in cash an additional Gross-Up Payment in respect Accounting Firm will determine the amount of the Underpayment, inform the Executive and the Company in writing of the Underpayment, and, within five (5) days of receiving such written report, the Company will pay the amount of such Underpayment to the Executive.

Determination of Gross-Up Payment. Subject to the provisions of Section 3(c)Paragraph 3 below, all determinations required under this Section 3Part Three, including whether a Gross-Up Payment is required, the amount of the Payments constituting “excess parachute payments, ” required and the amount of the Gross-Up Payment, shall will be made by a certified public accounting firm immediately before the Change in Control occurs (the “Accounting Firm”), which shall provide detailed supporting calculations to both to you and the Company within fifteen 15 business days after the Change in Control (or any other change in ownership or effective control that triggers application of any date reasonably requested the Excise Tax). All fees and expenses of the Accounting Firm will be borne solely by you or the Company on which a determination under this Section 3 is necessary or advisableCompany. The Company shall pay you in cash the initial Gross-Up Payment determined pursuant to this Paragraph 2 will be paid to you by the Company within five days of the receipt by you and the Company of after it receives the Accounting Firm's ’s determination; provided, however, that in any event such payment will be made by the December 31 of the calendar year following the calendar year in which you pay the Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by you, the Company shall cause the Accounting Firm to provide it will furnish you with an a written opinion that the Accounting Firm has substantial authority under the Code and Regulations not failure to report an the Excise Tax on your applicable federal income tax returnreturn will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall will be binding upon on both you and the Company. If Notwithstanding the initial foregoing, as a result of uncertainty in applying Section 4999 of the Code, it is possible that the Company will not have made Gross-Up Payment is insufficient Payments that it should have made hereunder (an “Underpayment”). If the Company exhausts its remedies pursuant to completely place Paragraph 3 hereof and you in the same after-tax economic position that you would have enjoyed if the are thereafter required to pay any Excise Tax had not applied to the Payments (hereinafter an "Underpayment")Tax, the Company, after exhausting its remedies under Section 3(c) below, shall promptly pay you in cash an additional Gross-Up Payment in respect Accounting Firm will determine the amount of the Underpayment, inform you and the Company in writing of the Underpayment, and, within five days of receiving such written report, the Company will pay the amount of such Underpayment to you or for your benefit.