Common use of Method of Determination Clause in Contracts

Method of Determination. One or more determinations (each a “Tax Determination”) as to (a) whether any of the Total Payments will be subject to the Excise Tax, (b) the amount of the Excise Tax imposed thereon, and (c) the calculation of the related Tax Gross-Up Payment shall be made by SunGard in consultation with such accounting and tax professionals as SunGard considers necessary (with all costs related thereto paid by SunGard). For purposes of determining whether any of the Total Payments will be subject to the Excise Tax, (i) all of the Total Payments shall be treated as “parachute payments” (within the meaning of section 280G of the Code) unless and to the extent that in the written advice of an independent accountant selected (and paid for) by SunGard and reasonably acceptable to Executive (the “Accountant”), certain Payments should not constitute parachute payments, and (ii) all “excess parachute payments” (within the meaning of section 280G of the Code) shall be treated as subject to the Excise Tax unless and only to the extent that the Accountant advises SunGard that such excess parachute payments are not subject to the Excise Tax. For purposes of determining the amount of any Tax Gross-Up Payment, Executive shall be deemed to pay (x) federal income tax at the highest marginal rate in effect for the calendar year during which such Tax Gross-Up Payment is to be made, (y) FICA taxes at the highest rate applicable to wages in excess of the Social Security taxable wage base in effect for such calendar year, and (z) state and local income taxes at the highest marginal rates in effect for such calendar year in the state and local municipality of Executive’s principal residence as of the Date of Termination or the date that any portion of the Total Payment becomes subject to the Excise Tax, net of the reduction in federal income tax attributable to the deduction of such state and local income taxes, and taking into account any limitation on deductions or credits or comparable negative impact for purposes of federal income tax as a result of the Total Payments made to Executive during such calendar year.