Common use of Application of Section 409A of the Internal Revenue Code Clause in Contracts

Application of Section 409A of the Internal Revenue Code. In the event that any payment or benefit to the Employee or for the Employee's benefit paid or payable or distributed or distributable under this Agreement ("Payment"), would be subject to the excise tax imposed by Section 409A of the Code, or any interest or penalties are incurred by the Employee with respect to such excise tax (collectively, "Excise Tax"), the Employee will be entitled to receive an additional payment ("Gross-Up Payment") in an amount such that after payment by the Employee of all taxes (including any income or payroll tax, interest or penalties imposed with respect to such taxes and the Excise Tax, other than interest and penalties imposed by reason of the Employee's failure to file timely a tax return or pay taxes shown due on the Employee's return, and including any Excise Tax imposed upon the Gross-Up Payment), the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. An initial determination as to whether and in what amount a Gross-Up Payment is required will be made at the Company's expense by an accounting firm of recognized national standing selected by the Company ("Accounting Firm"). The Accounting Firm will provide its determination ("Determination"), together with detailed supporting calculations and documentation, to the Company and the Employee within five days of the Date of Termination, if applicable, or such other time as requested by the Company or by the Employee (provided the Employee reasonably believes that any of the Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee with respect to a Payment or Payments, it will furnish the Employee an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed. Within 10 days of the delivery of the Determination, the Employee will have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this Section will be paid by the Company to the Employee within 5 days of the receipt of the Determination. The existence of the Dispute will not in any way affect the Employee's right to receive the Gross-Up Payment in accordance with the Determination. If there is no Dispute, the Determination will be binding upon the Company and the Employee, subject to the following paragraph. As a result of uncertainty in the application of Section 409A of the Code, it is possible that a Gross-Up Payment will be paid which should not be paid ("Excess Payment") or that a Gross-Up Payment which should be paid will not be paid ("Underpayment"). An Underpayment will be deemed to have occurred (i) upon notice to the Employee from any governmental taxing authority that the Employee's tax liability (whether in respect of the Employee's current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (ii) upon a determination by a court, (iii) by reason of a determination by the Company (which will include the position taken by the Company on its federal income tax return) or (iv) upon the resolution of the Dispute to the Employee's satisfaction. If an Underpayment occurs, the Employee will promptly notify the Company and the Company will promptly, but in any event at least 5 days prior to the date on which the applicable government taxing authority has requested payment, pay to the Employee an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of the Employee's failure to file timely a tax return or pay taxes shown due on the Employee's return) imposed on the Underpayment. An Excess Payment will be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax will not be imposed upon a Payment or Payments (or portion thereof) with respect to which the Employee had previously received a Gross-Up Payment. A "Final Determination" will be deemed to have occurred when the Employee has received from the applicable government taxing authority a refund of taxes or other reduction in the Employee's tax liability by reason of the Excise Payment and upon either (x) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally binds the Employee and such taxing authority, or if a claim is brought before a court, the date a final determination has been made by such court and either all appeals have been finally resolved or the time for all appeals has expired or (y) the statute of limitations with respect to the Employee's applicable tax return has expired. If an Excess Payment is determined to have been made, the Employee will pay to the Company (but not less than 10 days after the determination of such Excess Payment and written notice has been delivered to the Employee) the amount of the Excess Payment plus interest at an annual rate equal to the Applicable Federal Rate provided for in Section 1274(d) of the Code from the date the Gross-Up Payment was paid until the date of repayment. The Employee will use reasonable cooperative efforts at the request of the Company to assist in the determination of the amount of any Excess Payment or Underpayment made to the Employee pursuant to this Plan.

Application of Section 409A of the Internal Revenue Code. In the event that any payment or benefit to the Employee or for the Employee's ’s benefit paid or payable or distributed or distributable under this Agreement ("“Payment"”), would be subject to the excise tax imposed by Section 409A of the Code, or any interest or penalties are incurred by the Employee with respect to such excise tax (collectively, "“Excise Tax"”), the Employee will be entitled to receive an additional payment ("“Gross-Up Payment"”) in an amount such that after payment by the Employee of all taxes (including any income or payroll tax, interest or penalties imposed with respect to such taxes and the Excise Tax, other than interest and penalties imposed by reason of the Employee's ’s failure to file timely a tax return or pay taxes shown due on the Employee's ’s return, and including any Excise Tax imposed upon the Gross-Up Payment), the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. An initial determination as to whether and in what amount a Gross-Up Payment is required will be made at the Company's ’s expense by an accounting firm of recognized national standing selected by the Company ("“Accounting Firm"”). The Accounting Firm will provide its determination ("“Determination"”), together with detailed supporting calculations and documentation, to the Company and the Employee within five days of the Date of Termination, if applicable, or such other time as requested by the Company or by the Employee (provided the Employee reasonably believes that any of the Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee with respect to a Payment or Payments, it will furnish the Employee an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed. Within 10 days of the delivery of the Determination, the Employee will have the right to dispute the Determination (the "“Dispute"”). The Gross-Up Payment, if any, as determined pursuant to this Section will be paid by the Company to the Employee within 5 days of the receipt of the Determination. The existence of the Dispute will not in any way affect the Employee's ’s right to receive the Gross-Up Payment in accordance with the Determination. If there is no Dispute, the Determination will be binding upon the Company and the Employee, subject to the following paragraph. As a result of uncertainty in the application of Section 409A of the Code, it is possible that a Gross-Up Payment will be paid which should not be paid ("“Excess Payment"”) or that a Gross-Up Payment which should be paid will not be paid ("“Underpayment"”). An Underpayment will be deemed to have occurred (i) upon notice to the Employee from any governmental taxing authority that the Employee's ’s tax liability (whether in respect of the Employee's ’s current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (ii) upon a determination by a court, (iii) by reason of a determination by the Company (which will include the position taken by the Company on its federal income tax return) or (iv) upon the resolution of the Dispute to the Employee's ’s satisfaction. If an Underpayment occurs, the Employee will promptly notify the Company and the Company will promptly, but in any event at least 5 days prior to the date on which the applicable government taxing authority has requested payment, pay to the Employee an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of the Employee's ’s failure to file timely a tax return or pay taxes shown due on the Employee's ’s return) imposed on the Underpayment. An Excess Payment will be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax will not be imposed upon a Payment or Payments (or portion thereof) with respect to which the Employee had previously received a Gross-Up Payment. A "“Final Determination" ” will be deemed to have occurred when the Employee has received from the applicable government taxing authority a refund of taxes or other reduction in the Employee's ’s tax liability by reason of the Excise Payment and upon either (x) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally binds the Employee and such taxing authority, or if a claim is brought before a court, the date a final determination has been made by such court and either all appeals have been finally resolved or the time for all appeals has expired or (y) the statute of limitations with respect to the Employee's ’s applicable tax return has expired. If an Excess Payment is determined to have been made, the Employee will pay to the Company (but not less than 10 days after the determination of such Excess Payment and written notice has been delivered to the Employee) the amount of the Excess Payment plus interest at an annual rate equal to the Applicable Federal Rate provided for in Section 1274(d) of the Code from the date the Gross-Up Payment was paid until the date of repayment. The Employee will use reasonable cooperative efforts at the request of the Company to assist in the determination of the amount of any Excess Payment or Underpayment made to the Employee pursuant to this Plan.