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

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c), all determinations required under this Section 7, including whether a Gross-Up Payment is required, the amount of the payments constituting parachute payments, and the amount of the Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Sun’s independent auditors or such other certified public accounting firm reasonably acceptable to Executive as may be designated by Sun (the "Accounting Firm"), which shall provide detailed supporting calculations both to Sun and Executive within fifteen business days of Executive’s date of termination or 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 receipt by Executive and Sun of the Accounting Firm’s determination of the initial Gross-Up Payment, Sun shall pay the amount of such Gross-Up Payment to the applicable taxing authorities for the benefit of Executive. If the Accounting Firm determines that no Excise Tax is payable by Executive, Sun shall cause the Accounting Firm to provide Executive and Sun with an opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report an Excise Tax on Executive’s federal income tax return. Any determination by the Accounting Firm shall be binding upon Executive and Sun. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Sun should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Sun exhausts its remedies pursuant to Section 7(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Sun to the applicable taxing authorities for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts).

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c), all All determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of the payments constituting parachute payments, required and the amount of the such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Sun’s independent auditors or such other a nationally recognized certified public accounting firm reasonably acceptable to Executive as may be designated mutually agreed by Sun the Company and the Employee (the "“Accounting Firm"), ”) which shall provide detailed supporting calculations both to Sun the Company and Executive Employee within fifteen ten (10) business days of Executive’s date of termination or 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 receipt of notice from Employee that Payments were made, or such earlier time as is required by Executive and Sun the Company; provided that for purposes of determining the Accounting Firm’s determination amount of the initial any Gross-Up Payment, Sun Employee shall be deemed to pay federal income tax at the amount of 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 7.2, shall be paid by the Company to Employee (or to the appropriate taxing authority on Employee’s behalf) when due; provided, however, that such payment shall be made no later than the end of the Employee’s taxable year following the taxable year in which the Employee remits such taxes to the applicable taxing authorities for the benefit of Executiveauthority. If the Accounting Firm determines that no Excise Tax is payable by ExecutiveEmployee, Sun it shall cause the Accounting Firm so indicate to provide Executive and Sun with an opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report an Excise Tax on Executive’s federal income tax returnEmployee in writing. Any determination by the Accounting Firm shall be binding upon Executive the Company and SunEmployee. As a result of the uncertainty in the application of Code Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder4999, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by Sun should have been made the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually required to be paid by Employee to the applicable taxing authority (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Sun the Company exhausts its remedies pursuant to Section 7(c) hereunder and Executive Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Sun the Company to or for the benefit of Employee; provided, 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 the applicable taxing authorities for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts)authority.

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c), all determinations required under this Section 7, including whether a Gross-Up Payment is required, the amount of the payments constituting parachute payments, and the amount of the Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Sun’s independent auditors or such other certified public accounting firm reasonably acceptable to Executive as may be designated by Sun (the "Accounting Firm"), ) which shall provide detailed supporting calculations both to Sun and Executive within fifteen business days of Executive’s date of termination or 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 receipt by Executive and Sun of the Accounting Firm’s determination of the initial Gross-Up Payment, Sun shall pay the amount of such Gross-Up Payment to the applicable taxing authorities for the benefit of Executive. If the Accounting Firm determines that no Excise Tax is payable by Executive, Sun shall cause the Accounting Firm to provide Executive and Sun with an opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report an Excise Tax on Executive’s federal income tax return. Any determination by the Accounting Firm shall be binding upon Executive and Sun. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Sun should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Sun exhausts its remedies pursuant to Section 7(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Sun to the applicable taxing authorities for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts).

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c10(c), all determinations required to be made under this Section 710, including the determination of whether a Gross-Up Payment is required, required and of the amount of the payments constituting parachute payments, and the amount of the any such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, shall be made by Sun’s tax counsel selected by the independent auditors or such other certified public accounting firm reasonably then retained by the Company to audit its financial statements and acceptable to Executive as may be designated by Sun the Company (the "Accounting FirmTax Counsel"), which shall provide detailed supporting calculations to both to Sun the Company and Executive within fifteen 15 business days of Executive’s the date of termination Termination, if applicable, or any other date reasonably such earlier time as is requested by Sun or Executive on which a the Company, provided that any determination under this Section 7 that an Excise Tax is necessary or advisable. Within five days of the receipt payable by Executive and Sun shall be made on the basis of the Accounting Firm’s determination of substantial authority. The Company shall pay the initial Gross-Up Payment, Sun shall pay if any, as determined pursuant to this Section 10(b), to Executive within five business days of the amount receipt of such Gross-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 applicable taxing authorities for time such Payment is due. In either case, the benefit of ExecutiveGross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicable. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by Executive, Sun it shall cause the Accounting Firm to provide furnish Executive and Sun with an a written opinion that Sun he has substantial authority under the Internal Revenue Code and regulations thereunder not to report an any Excise Tax on Executive’s federal his Federal income tax return. Any determination by Tax Counsel meeting the Accounting Firm requirements of this Section 10(b) shall be binding upon Executive the Company and Sun. As Executive; subject only to payments pursuant to the following sentence based on a result of the uncertainty in the 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 made (“Underpayment”)made, consistent with the calculations required to be made hereunderunder this Section 10 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In If the event that Sun Company exhausts its remedies pursuant to Section 7(c) 10(c), and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm 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 shall be promptly paid by Sun to the applicable taxing authorities or for the benefit of Executive (or directly Executive, subject to Executive in any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the event Executive previously paid the related tax amounts)fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c10(c), all determinations required to be made under this Section 710, including the determination of whether a Gross-Up Payment is required, required and of the amount of the payments constituting parachute payments, and the amount of the any such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, shall be made by Sun’s tax counsel selected by the independent auditors or such other certified public accounting firm reasonably then retained by the Company to audit its financial statements and acceptable to Executive as may be designated by Sun the Company (the "Accounting FirmTax Counsel"), which shall provide detailed supporting calculations to both to Sun the Company and Executive within fifteen 15 business days of Executive’s the date of termination termination, if applicable, or any other date reasonably such earlier time as is requested by Sun or Executive on which a the Company, provided that any determination under this Section 7 that an Excise Tax is necessary or advisable. Within five days of the receipt payable by Executive and Sun shall be made on the basis of the Accounting Firm’s determination of substantial authority. The Company shall pay the initial Gross-Up Payment, Sun shall pay if any, as determined pursuant to this Section 10(b), to Executive within five business days of the amount receipt of such Gross-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 applicable taxing authorities for time such Payment is due. In either case, the benefit of ExecutiveGross Up Payment shall be subject to any withholding tax obligation determined by Tax Counsel to be applicable. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by Executive, Sun it shall cause the Accounting Firm to provide furnish Executive and Sun with an a written opinion that Sun he has substantial authority under the Internal Revenue Code and regulations thereunder not to report an any Excise Tax on Executive’s federal his Federal income tax return. Any determination by Tax Counsel meeting the Accounting Firm requirements of this Section 10(b) shall be binding upon Executive the Company and Sun. As Executive; subject only to payments pursuant to the following sentence based on a result of the uncertainty in the 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 made (“Underpayment”)made, consistent with the calculations required to be made hereunderunder this Section 10 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In If the event that Sun Company exhausts its remedies pursuant to Section 7(c) 10(c), and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm 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 shall be promptly paid by Sun to the applicable taxing authorities or for the benefit of Executive (or directly Executive, subject to Executive in any withholding tax obligation determined by Tax Counsel to be applicable. The Company shall pay the event Executive previously paid the related tax amounts)fees and disbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c)paragraph (iii) below, all determinations required under this Section 718(c), including whether a Gross-Up Payment is required, the amount of the payments constituting parachute payments, required and the amount of the Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, shall will be made by Sun’s independent auditors or such other a national certified public accounting firm reasonably acceptable to Executive as may be designated by Sun (the "“Accounting Firm"), which ”) selected by the Company. The Accounting Firm shall provide detailed supporting calculations to both to Sun the Executive and Executive the Company within fifteen business (15) days after the later of Executive’s the date of termination the Change in Control (or any other date reasonably requested by Sun change in ownership or Executive on which a determination under this Section 7 is necessary or advisable. Within five days effective control of the receipt by 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 Sun expenses of the Accounting Firm’s determination Firm will be borne solely by the Company. For purposes of determining the amount of the initial Gross-Up Payment, Sun the Executive shall be deemed to pay federal income taxes at the amount highest applicable marginal rate of such 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 deductions based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment determined pursuant to this paragraph (ii) will be paid to the applicable taxing authorities for Executive by the benefit of ExecutiveCompany within five (5) days after it receives the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, Sun shall cause it will furnish the Accounting Firm to provide Executive and Sun with an a written opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder not failure to report an the Excise Tax on 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 on both the Executive and Sunthe Company. As Notwithstanding the foregoing, as a result of the uncertainty in the application of applying Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderCode, it is possible that the Company will not have made Gross-Up Payments which will not have been made by Sun that it should have been made hereunder (an “Underpayment”), consistent with . If the calculations required to be made hereunder. In the event that Sun Company exhausts its remedies pursuant to Section 7(cparagraph (iii) hereof and the Executive is thereafter is required to make a payment of pay any Excise Tax, the Accounting Firm shall will determine the amount of the Underpayment that has occurred Underpayment, inform the Executive and any 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 shall be promptly paid by Sun to the applicable taxing authorities for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts)Executive.

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c), all determinations required under this Section 7, including whether a Gross-Up Payment is required, the amount of the payments constituting parachute payments, and the amount of the Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Sun’s 's independent auditors or such other certified public accounting firm reasonably acceptable to Executive as may be designated by Sun (the "Accounting Firm"), ) which shall provide detailed supporting calculations both to Sun and Executive within fifteen business days following the receipt of Executive’s date of termination notice from Executive that there has been a Payment, or any other date reasonably such earlier time as is requested by Sun or Executive on which a determination under this Section 7 is necessary or advisableSun. Within five days of the receipt by Executive All fees and Sun expenses of the Accounting Firm’s determination of the initial Firm shall be borne solely by Sun. Any Gross-Up Payment, as determined pursuant to this Section 7, shall be paid by Sun shall pay the amount of such Gross-Up Payment to the applicable taxing authorities Executive not later than the due date for the benefit payment of Executiveany Excise Tax. If the Accounting Firm determines that no Excise Tax is payable by Executive, Sun shall cause the Accounting Firm to provide Executive and Sun with an opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder Regulations not to report an Excise Tax on Executive’s 's federal income tax return. Any determination by the Accounting Firm shall be binding upon Executive and Sun. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Sun should have been made (“"Underpayment”"), consistent with the calculations required to be made hereunder. In the event that Sun exhausts its remedies pursuant to Section 7(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Sun to the applicable taxing authorities or for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts)Executive.

Determination of Gross-Up Payment. Subject to the provisions of Section 7(c), all determinations required under this Section 7, including whether a Gross-Up Payment is required, the amount of the payments constituting parachute payments, and the amount of the Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Sun’s independent auditors or such other certified public accounting firm reasonably acceptable to Executive as may be designated by Sun (the "“Accounting Firm"”), which shall provide detailed supporting calculations both to Sun and Executive within fifteen business days of Executive’s date of termination or 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 receipt by Executive and Sun of the Accounting Firm’s determination of the initial Gross-Up Payment, Sun shall pay the amount of such Gross-Up Payment to the applicable taxing authorities for the benefit of Executive. If the Accounting Firm determines that no Excise Tax is payable by Executive, Sun shall cause the Accounting Firm to provide Executive and Sun with an opinion that Sun has substantial authority under the Internal Revenue Code and regulations thereunder not to report an Excise Tax on Executive’s federal income tax return. Any determination by the Accounting Firm shall be binding upon Executive and Sun. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by Sun should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Sun exhausts its remedies pursuant to Section 7(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Sun to the applicable taxing authorities for the benefit of Executive (or directly to Executive in the event Executive previously paid the related tax amounts).