iHeartMedia 2002 Annual Report Download - page 163

rights under any employee benefit plan of the Company in which the Executive has
a vested interest, unless, otherwise provided in such employee benefit plan or
any agreement or other instrument attendant thereto.
(f) ADDITIONAL PAYMENTS. (i) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any payment, award,
benefit or distribution except for the payment described in Paragraph 8(d)(ii)
above (or any acceleration of any payment, award, benefit or distribution) by
the Company or any entity which effectuates a Change in Control (or other change
in ownership) to or for the benefit of the Executive (the "Payments") would be
subject to the excise tax imposed by Section 4999 of the Internal Revenue Code
of 1986, as amended, or any interest or penalties are incurred by the Executive
with respect to such excise tax (such excise tax, together with any such
interest and penalties, are hereinafter collectively referred to as the "Excise
Tax"), then the Company shall pay to the Executive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the Executive of all
taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the
Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the
Excise Tax imposed upon the Payments and (y) the product of any deductions
disallowed because of the inclusion of the Gross-Up Payment in the Executive’s
adjusted gross income and the highest applicable marginal rate of federal income
taxation for the calendar year in which the Gross-Up Payment is to be made. For
purposes of determining the amount of the Gross-Up Payment, the Executive shall
be deemed to (A) pay federal income taxes at the highest marginal rates of
federal income taxes at the highest marginal rate of taxation for the calendar
year in which the Gross-Up Payment is to be made, (B) pay applicable state and
local income taxes at the highest marginal rate of taxation for the calendar
year in which the Gross-Up Payment is to be made, net of the maximum reduction
in federal income taxes which could be obtained from deduction of such state and
local taxes and (C) have otherwise allowable deductions for federal income tax
purposes at least equal to those which could be disallowed because of the
inclusion of the Gross-Up Payment in the Executive’s adjusted gross income.
(ii) Subject to the provisions of Paragraph
8(f)(i), all determinations required to be made under this Paragraph 8(f),
including whether and when a Gross-Up Payment is required, the amount of such
Gross-Up Payment and the assumptions to be utilized in arriving at such
determinations, shall be made by a nationally recognized public accounting firm
that is selected by the Executive (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within
fifteen (15) business days of the receipt of notice from the Company or the
Executive that there has been a Payment, or such earlier time as is requested by
the Company or the Executive (collectively, the "Determination"). All fees and
expenses of the Accounting Firm shall be borne solely by the Company and the
Company shall enter into any agreement requested by the Accounting Firm in
connection with the performance of the services hereunder. The Gross-Up Payment
under this Paragraph 8(f) with respect to any Payments made to the Executive
shall be made no later than thirty (30) days following such Payment. If the
Accounting Firm determines that no Excise Tax is payable by the Executive, it
shall furnish the Executive with a written opinion to such effect, and to the
effect that failure to report the Excise Tax, if any, on the Executive’s
applicable federal income tax return should not result in the imposition of a
negligence or similar penalty.
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