Common use of Gross-up for Certain Taxes Clause in Contracts

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“Code”) Section 4999 (“Excise Tax”) (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and you, such payments or benefits due to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If, despite the use of commercially reasonable efforts, the Company and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for the amount of such Excise Tax plus all federal, state and local taxes applicable to the Company’s payment of such Excise Taxes, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this Section 9 is that the Company will pay you an additional amount (the “Gross-Up Payment”) such that the net amount retained by you after deduction of (i) any Excise Tax imposed on any such payment or benefit; and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up Payment, will equal the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax.

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“"Code”") Section 4999 (“"Excise Tax”") (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and you, such payments or benefits due to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If, despite the use of commercially reasonable efforts, the Company and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for the amount of such Excise Tax plus all federal, state and local taxes applicable to the Company’s 's payment of such Excise Taxes, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this Section 9 is that the Company will pay you an additional amount (the “"Gross-Up Payment”") such that the net amount retained by you after deduction of (i) any Excise Tax imposed on any such payment or benefit; and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up Payment, will equal the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax.

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“Code”1) Section 4999 (“Excise Tax”) (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable Subject to the Company and youprovisions of Section 11(f) of this Agreement, such payments or benefits due all determinations required to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you made under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If11, despite the use of commercially reasonable efforts, the Company including whether and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for when a Gross-up Payment (as defined below) is required and the amount of such Excise Tax plus all federalGross-up Payment and the assumptions to be utilized in arriving at such determination, state and local taxes applicable will be made by a nationally recognized public accounting firm (other than the firm serving as the accountant or auditor for the individual, entity or group effecting the Change of Control) that is designated by the Corporation (the “Accounting Firm”), which will provide detailed supporting calculations both to the Company’s payment Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment (as defined below), or such Excise Taxesearlier time as is requested by the Corporation (collectively, a “Determination”). All fees and expenses of the Accounting Firm will be borne solely by the Corporation. (2) Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined by the Accounting Firm that any payment, distribution or other benefit (including any additional taxes due under acceleration of vesting of any benefit) received or deemed received by the Executive from the Corporation and its affiliates pursuant to this Agreement or otherwise (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any Gross-up Payment required by this Section 11) (a “Payment”) is or will become subject to any excise tax imposed by Section 4999 of the Internal Revenue Code or any similar tax payable under any United States federal, state, local or other law (such excise tax and all such similar taxes, together with any interest and penalties imposed in respect thereto, are referred to payments made pursuant to in this provision. Calculations for these purposes will assume Agreement as the highest marginal rate for individuals applicable at “Excise Taxes”), then the time of calculation. The intent of this Section 9 is that the Company Corporation will pay you the Executive within five days of receipt of the Determination an additional amount (the “Gross-Up up Payment”) such that the net amount retained by you the Executive, after the deduction of (i) any Excise Taxes on the Payments, and any federal, state and local income tax, Medicare and any Excise Tax imposed (including any applicable interest and penalties on any all such payment or benefit; taxes) upon such Gross-up Payment, will be equal to the amount of the Payments in the absence of the imposition of such Excise Taxes and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up up Payment, will equal . (3) For purposes of determining the amount of the Gross-up Payment, the Executive will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and local income taxes at the highest marginal rates of taxation in the state and locality of his residence in such payment or benefit reduced calendar year. (4) If the Accounting Firm determines that no Excise Tax is payable by all applicable taxes on such amount other than the Executive, it will furnish the Executive with a written opinion that failure to report the Excise TaxTax on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty.

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“Code”1) Section 4999 (“Excise Tax”) (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable Subject to the Company and youprovisions of Section 11(f) of this Agreement, such payments or benefits due all determinations required to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you made under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If11, despite the use of commercially reasonable efforts, the Company including whether and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for when a Gross-up Payment (as defined below) is required and the amount of such Excise Tax plus all federalGross-up Payment and the assumptions to be utilized in arriving at such determination, state and local taxes applicable will be made by a nationally recognized public accounting firm (other than the firm serving as the accountant or auditor for the individual, entity or group effecting the Change of Control) that is designated by the Corporation (the “Accounting Firm”), which will provide detailed supporting calculations both to the Company’s payment Corporation and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment (as defined below), or such Excise Taxesearlier time as is requested by the Corporation (collectively, a “Determination”). All fees and expenses of the Accounting Firm will be borne solely by the Corporation. (2) Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined by the Accounting Firm that any payment, distribution or other benefit (including any additional taxes due under acceleration of vesting of any benefit) received or deemed received by the Executive from the Corporation and its affiliates pursuant to this Agreement or otherwise (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any Gross-up Payment required by this Section 11) (a “Payment”) is or will become subject to any excise tax imposed by Section 4999 of the Internal Revenue Code or any similar tax payable under any United States federal, state, local or other law (such excise tax and all such similar taxes, together with any interest and penalties imposed in respect thereto, are referred to payments made pursuant to in this provision. Calculations for these purposes will assume Agreement as the highest marginal rate for individuals applicable at “Excise Taxes”), then the time of calculation. The intent of this Section 9 is that the Company Corporation will pay you the Executive within five days of receipt of the Determination, and in no event later than the end of the calendar year in which the Executive pays such taxes, an additional amount (the “Gross-Up up Payment”) such that the net amount retained by you the Executive, after the deduction of (i) any Excise Taxes on the Payments, and any federal, state and local income tax, Medicare and any Excise Tax imposed (including any applicable interest and penalties on any all such payment or benefit; taxes) upon such Gross-up Payment, will be equal to the amount of the Payments in the absence of the imposition of such Excise Taxes and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up up Payment, will equal . (3) For purposes of determining the amount of the Gross-up Payment, the Executive will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment is to be made and local income taxes at the highest marginal rates of taxation in the state and locality of his residence in such payment or benefit reduced calendar year. (4) If the Accounting Firm determines that no Excise Tax is payable by all applicable taxes on such amount other than the Executive, it will furnish the Executive with a written opinion that failure to report the Excise TaxTax on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty.

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“Code”) Section 4999 (“Excise Tax”) (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and you, such payments or benefits due to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If, despite the use of commercially reasonable efforts, the Company and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for the amount of such Excise Tax plus all federal, state and local taxes applicable to the Company’s payment of such Excise Taxes, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this Section 9 is that the Company will pay you an additional amount (the “Gross-Up Payment”) such that the net amount retained by you after deduction of (i) any Excise Tax imposed on any such payment or benefit; and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up Payment, will equal the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax▇▇▇.

Gross-up for Certain Taxes. If any of the payments or benefits due to you under this Agreement would otherwise result in your liability for any excise taxes pursuant to Internal Revenue Code (“"Code”") Section 4999 (“"Excise Tax”") (whether at the time of payment or upon a later IRS audit), the Company and you agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and you, such payments or benefits due to you so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law; provided, however, that, without creating any implication as to whether or not, under all the circumstances it would be unreasonable for you to refuse to defer receipt for a shorter period, the Company agrees that, regardless of the circumstances, it shall not be unreasonable for you to refuse to defer receipt of a material portion of the payments or benefits due to you under this Section 9 for more than six months after the date on which such payments or benefits would otherwise become due to you under this Agreement. If, despite the use of commercially reasonable efforts, the Company and you are unable either to agree on any such restructuring or to restructure the payments or benefits due to you under this Agreement to eliminate such Excise Tax, the Company will reimburse you for the amount of such Excise Tax plus all federal, state and local taxes applicable to the Company’s 's payment of such Excise Taxes, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this Section 9 is that the Company will pay you an additional amount (the “"Gross-Up Payment”") such that the net amount retained by you after deduction of (i) any Excise Tax imposed on any such payment or benefit; and (ii) any excise tax, federal, state or local income, payroll, and/or other taxes, imposed on the Gross-Up Payment, will equal the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax▇▇▇.