Common use of Excess Parachute Payment Gross-up Clause in Contracts

Excess Parachute Payment Gross-up. If it is determined, in the opinion of the Company’s independent accountants, in consultation, if necessary, with the Company’s independent legal counsel, that any amount paid under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder or under any other plan or agreement under which the Executive participates or to which he is a party, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”), and would thereby be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then in such event, the Company shall pay to the Executive a “grossing-up” amount equal to the amount of such Excise Tax, plus all federal and state income or other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, then the Company shall pay to the Executive the amount of such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any grossing-up supplemental compensation paid under this Section shall be conclusively made by the Company’s independent accountants, or other independent accountants retained by the Company, in consultation, if necessary, with the Company’s independent legal counsel. If, after the Executive receives any gross-up payments or other amount pursuant to this Section, the Executive receives any refund with respect to the Excise Tax, the Executive shall promptly pay the Company the amount of such refund within ten (10) days of receipt by the Executive, on a grossed-up basis. If the Company deems it necessary or advisable to contest or appeal any assessment, or determination made by the Internal Revenue Service relating to the imposition of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”), the Executive covenants and agrees to reasonably cooperate with the Company in connection with the Excise Tax Contest/Appeal; provided, however, that the Company shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/Appeal.

Excess Parachute Payment Gross-up. (a) If it is determined, in the opinion payment of the Company’s independent accountants, in consultation, if necessary, with the Company’s independent legal counsel, that any amount paid benefit under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder (or under any other plan or agreement arrangement with the Company, including, but not limited to the vesting of awards under which the Executive participates or to which he is a partySmart Balance, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”Inc. Stock and Awards Plan), and would thereby be subject when added to any other payments or benefits provided to Employee in the nature of compensation will result in the payment of an excise tax imposed by under Code Section 4999 of the Code (the “Excise Tax”), then the Company shall pay Employee an additional amount for each calendar year in which an excess parachute payment is received by the Executive (the “Gross-Up Payment”). The Gross-Up Payment shall be in such eventamount as is necessary to place Employee in the same after-tax financial position that Employee would have been in if there were no Excise Tax on any payment from the Company, regardless of whether the payment is made under this Agreement, under the Smart Balance, Inc. Stock and Awards Plan or any other plan, program or arrangement (collectively, the Change of Control Payments and, individually, a Change of Control Payment). For purposes of determining whether any of the Change of Control Payments will be subject to the Excise Tax and the amount of such Excise Tax liability: (i) all Change of Control Payments shall be treated as “parachute payments” (within the meaning of Code Section 280G(b)(2)) unless, in the reasonable opinion of the Company’s tax counsel, such Change of Control Payments (in whole or in part) do not constitute parachute payments, including, by reason of Code Section 280G(b)(4)(A), and all “excess parachute payments” (within the meaning of Code Section 280G(b)(1) of the Code) shall be treated as subject to the Excise Tax, unless, in the reasonable opinion of the Company’s tax counsel, such excess parachute payments represent reasonable compensation for services actually rendered within the meaning of Code Section 280G(b)(4)(B), or are not otherwise subject to the Excise Tax, and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Code Sections 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Employee shall 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 state and local income taxes at the highest marginal rate of taxation in the state and locality of residence of the Employee, new of the maximum reduction in federal income taxes that could be obtained from the deduction of such state and local taxes. Payment of the Gross-Up Payment shall be made to Employee on or before December 31 of each calendar year for which an excess parachute payment is received by Employee. (b) Any determination to be made by the Company’s tax counsel or independent auditors shall be made, at the Company’s expense, by the legal or accounting firm that is the Company’s independent legal or accounting firm as of the date of the Change of Control or, if such firm is prohibited from performing such services by applicable law, then such accounting firm as the Board or the Audit Committee thereof, shall approve (the “Firm”). The Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation, to the Company and Employee within twenty (20) days of the Termination Date if applicable, or such other time as requested by the Company or by Employee (provided Employee reasonably believes that any of the Change of Control Payments may be subject to the Excise Tax), and if the Firm determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by Employee with respect to a Change of Control Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Change of Control Payment or Payments. Within ten (10) days of the delivery of the Determination to Employee, Employee shall have the right to dispute the Determination (the “Dispute”). If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and Employee. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Change of Control Payments to be made to, or provided for the benefit of, Employee either will be greater (an “Excess Payment”) or less (an “Underpayment”) than the amounts provided for by the limitations contained in Section 5(a) hereof. If it is established pursuant to a final determination of a court or an Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved that an Excess Payment has been made, such Excess Payment shall be deemed for all purposes to be a loan, to the extent permitted by applicable law, to Employee made on the date Employee received the Excess Payment and Employee shall repay the Excess Payment to the Company on demand (but not less than ten (10) days after written notice is received by Employee) together with interest on the Excess Payment at the “Applicable Federal Rate” (as defined in Section 1274(d) of the Code) from the date of Employee’s receipt of such Excess Payment until the date of such repayment. In the event that it is determined by (i) the Accounting Firm, the Company (which shall include the position taken by the Company, or together with its consolidated group, on its federal income tax return) or the IRS, (ii) pursuant to a determination by a court, or (iii) upon the resolution to Employee’s satisfaction of the Dispute that an Underpayment has occurred, the Company shall pay to the Executive a “grossing-up” an amount equal to the amount of such Excise Tax, plus all federal and state income or other taxes with respect Underpayment to the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, then the Company shall pay to the Executive the amount of such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any grossing-up supplemental compensation paid under this Section shall be conclusively made by the Company’s independent accountants, or other independent accountants retained by the Company, in consultation, if necessary, with the Company’s independent legal counsel. If, after the Executive receives any gross-up payments or other amount pursuant to this Section, the Executive receives any refund with respect to the Excise Tax, the Executive shall promptly pay the Company the amount of such refund Employee within ten (10) days of receipt by such determination or resolution, together with interest on such amount at the Executive, on a grossed-up basis. If Applicable Federal Rate from the Company deems it necessary or advisable date such amount would have been paid to contest or appeal any assessment, or determination made by Employee until the Internal Revenue Service relating to the imposition date of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”), the Executive covenants and agrees to reasonably cooperate with the Company in connection with the Excise Tax Contest/Appeal; provided, however, that the Company shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/Appealpayment.

Excess Parachute Payment Gross-up. If it is determined, in the opinion of the Company’s independent accountants, in consultation, if necessary, with the Company’s independent legal counsel, that any amount paid under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder or under any other plan or agreement under which the Executive participates or to which he is a party, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”), and would thereby be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then in such event, the Company shall pay to the Executive a “grossing-up” amount equal to the amount of such Excise Tax, plus all federal and state income or other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, then the Company shall pay to the Executive the amount of such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any grossing-up supplemental compensation paid under this Section shall be conclusively made by the Company’s independent accountants, or other independent accountants retained by the Company, in consultation, if necessary, with the Company’s independent legal counsel. If, after the Executive receives any gross-up payments or other amount pursuant to this Section, the Executive receives any refund with respect to the Excise Tax, the Executive shall promptly pay the Company the amount of such refund within ten (10) days of receipt by the Executive, on a grossed-up basis. If the Company deems it necessary or advisable to contest or appeal any assessment, or determination made by the Internal Revenue Service relating to the imposition of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”), the Executive covenants and agrees to reasonably cooperate with the Company in connection with the Excise Tax Contest/Appeal; provided, however, that the Company shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/Appeal.. WEST MICHIGAN COMMUNITY BANK Supplemental Executive Retirement Agreement

Excess Parachute Payment Gross-up. (a) If it is determined, in the opinion of Tax Counsel (as defined in Section 4(c) below) the Company’s independent accountants, in consultation, if necessary, with the Company’s independent legal counsel, that any amount paid under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder or under any other plan or agreement under which the Executive participates or to which he is a party, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”), and would thereby Employee will be subject to the an excise tax imposed by under Section 4999 of the Code (the “Excise Tax”)) with respect to all or any portion of the payments to be made by the Company to the Employee following a termination of the Employee’s employment, under this Agreement or otherwise, then in such event, the Company shall pay to following will apply: (i) If the Executive a “grossing-up” amount equal to aggregate present value of all payments which would be taken into account for purposes of determining the amount of such the Excise Tax, plus all federal and state income or other taxes with respect to if any, payable by the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which Employee under Code Section 4999 (“280G Payments”) is greater than that which was determined at the time such amounts were paidsum of 300% of the Employee’s “base amount” for purposes of Code Section 280G (“280G Base Amount”), plus $100,000, then the Company shall pay to the Executive Employee within thirty (30) days after such determination (and in all events prior to March 15 of the year following the year of termination) an additional amount of (the “Gross-Up Payment”). The Gross-Up Payment shall be in such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred amount such that the net amount retained by the Executive as a result of such assessmentEmployee, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company shall withhold from any amounts paid under this Agreement the amount after deduction of any Excise Tax or other (but not federal, state or local income and employment taxes) on the 280G Payments and any Excise Tax and federal, state or local income and employment taxes then required to be withheldon the Gross-Up Payment equals the 280G Payments. Computations For purposes of determining the amount of any grossingthe Gross-up supplemental compensation paid under this Section Up Payment, the Employee shall be conclusively deemed to pay federal income taxes at the highest marginal federal income tax rate and state and local income taxes at the highest marginal income tax rates in the state and locality where the Employee resides on the Termination Date. In determining the Gross-Up Payment, the Employee’s deemed federal income tax liability shall be determined net of the maximum reduction in federal income taxes that could be obtained from the deduction of state and local income taxes. (ii) If the aggregate present value of all 280G payments is less than or equal to the sum of 300% of the Employee’s 280G Base Amount, plus $100,000, then the Company and the Employee agree that the amount of payments to be made by the CompanyCompany to the Employee under this Agreement shall be reduced such that the present value of 280G Payments to be received by the Employee is reduced to 299.99% of the Employee’s independent accountantsBase Amount (“Scaled Back Amount”). (b) If there is a final determination, pursuant to a binding, irrevocable agreement between the Employee and the Internal Revenue Service or other independent accountants pursuant to a final, non-appealable order of a court of competent jurisdiction, that the amount of the Excise Tax payable by the Employee is greater than the Excise Tax amount used in computing the Gross-Up Payment, then the Company shall pay to the Employee within thirty (30) days of such determination (and in all events prior to the end of the calendar year following the calendar year in which Employee pays such additional Excise Tax amount) an additional payment (“Supplemental Gross-Up Payment”) in such amount so that the net amount retained by the Company, in consultation, if necessary, with the Company’s independent legal counsel. IfEmployee, after deduction of any Excise Tax (but not federal, state, and local income and employment taxes)on the Executive receives 280G Payments and any grossExcise Tax and federal, state or local income and employment taxes on the Gross-up payments Up Payment and Supplemental Gross-Up Payment equals the 280G Payments. If under such final determination the amount of the Excise Tax ultimately payable by the Employee is less than the amount of Excise Tax used in computing the Gross-Up Amount, then the Employee shall refund to the Company such amount so that the net amount retained by the Employee, after deduction of any Excise Tax (but not federal, state and local income and employment taxes)on the 280G Payments and any Excise Tax and federal, state or other amount pursuant to local income and employment taxes on the Gross-Up Payment, equals the 280G Payments. (c) For purposes of this SectionSection 4, within sixty (60) days after the Executive receives any refund Termination Date of the Employee within twenty-four (24) months of a Change of Control with respect to the Excise TaxCompany (or, if an event other than termination of employment results in payment of parachute payments under Section 280G of the Executive shall promptly pay the Company the amount of Code and it is reasonably possible that such refund within ten parachute payments could result in an excise tax, with sixty (1060) days of receipt by the Executive, on a grossed-up basis. If the Company deems it necessary or advisable to contest or appeal any assessment, or determination made by the Internal Revenue Service relating to the imposition of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”after such other event), the Executive covenants Company shall obtain, at its expense, the opinion (which need not be unqualified) of nationally recognized tax counsel (“Tax Counsel”) selected by the Compensation Committee of the Board, which sets forth (i) the 280G Base Amount; (ii) the aggregate present value of the payments in the nature of compensation to the Employee as prescribed in Section 280G(b)(2)(A)(ii) of the Code; and agrees (iii) the amount and present value of any “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code. Such opinion shall be addressed to reasonably cooperate the Company and the Employee and shall be binding upon the Company and the Employee. For purposes of such opinion, the value of any non-cash benefits or any deferred payment or benefit shall be determined by an independent accounting firm selected by the Compensation Committee of the Company’s Board in accordance with the Company principles of Section 280G of the Code and regulations thereunder, which determination shall be evidenced in connection with the Excise Tax Contest/Appeal; provided, however, that a certificate of such firm addressed to the Company shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/AppealEmployee.

Excess Parachute Payment Gross-up. (a) If it is determined, in the opinion of Tax Counsel (as defined in Section 4(c) below) the Company’s independent accountants, in consultation, if necessary, with the Company’s independent legal counsel, that any amount paid under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder or under any other plan or agreement under which the Executive participates or to which he is a party, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”), and would thereby Employee will be subject to the an excise tax imposed by under Code Section 4999 of the Code (the “Excise Tax”)) with respect to all or any portion of the payments to be made by the Company to the Employee following a termination of the Employee’s employment, under this Agreement or otherwise, then in such event, the Company shall pay to following will apply: (i) If the Executive a “grossing-up” amount equal to aggregate present value of all payments which would be taken into account for purposes of determining the amount of such the Excise Tax, plus all federal and state income or other taxes with respect to if any, payable by the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which Employee under Code Section 4999 (“280G Payments”) is greater than that which was determined at the time such amounts were paidsum of 300% of the Employee’s “base amount” for purposes of Code Section 280G (“280G Base Amount”), plus $100,000, then the Company shall pay to the Executive Employee within thirty (30) days after such determination (and in all events prior to March 15 of the year following the year of termination) an additional amount of (the “Gross-Up Payment”). The Gross-Up Payment shall be in such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred amount such that the net amount retained by the Executive as a result of such assessmentEmployee, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company shall withhold from any amounts paid under this Agreement the amount after deduction of any Excise Tax or other (but not federal, state or local income and employment taxes) on the 280G Payments and any Excise Tax and federal, state or local income and employment taxes then required to be withheldon the Gross-Up Payment equals the 280G Payments. Computations For purposes of determining the amount of any grossingthe Gross-up supplemental compensation paid under this Section Up Payment, the Employee shall be conclusively deemed to pay federal income taxes at the highest marginal federal income tax rate and state and local income taxes at the highest marginal income tax rates in the state and locality where the Employee resides on the Termination Date. In determining the Gross-Up Payment, the Employee’s deemed federal income tax liability shall be determined net of the maximum reduction in federal income taxes that could be obtained from the deduction of state and local income taxes. (ii) If the aggregate present value of all 280G payments is less than or equal to the sum of 300% of the Employee’s 280G Base Amount, plus $100,000, then the Company and the Employee agree that the amount of payments to be made by the CompanyCompany to the Employee under this Agreement shall be reduced such that the present value of 280G Payments to be received by the Employee is reduced to 299.99% of the Employee’s independent accountantsBase Amount (“Scaled Back Amount”). (b) If there is a final determination, pursuant to a binding, irrevocable agreement between the Employee and the Internal Revenue Service or other independent accountants pursuant to a final, non-appealable order of a court of competent jurisdiction, that the amount of the Excise Tax payable by the Employee is greater than the Excise Tax amount used in computing the Gross-Up Payment, then the Company shall pay to the Employee within thirty (30) days of such determination (and in all events prior to the end of the calendar year following the calendar year in which Employee pays such additional Excise Tax amount) an additional payment (“Supplemental Gross-Up Payment”) in such amount so that the net amount retained by the Company, in consultation, if necessary, with the Company’s independent legal counsel. IfEmployee, after deduction of any Excise Tax (but not federal, state, and local income and employment taxes)on the Executive receives 280G Payments and any grossExcise Tax and federal, state or local income and employment taxes on the Gross-up payments Up Payment and Supplemental Gross-Up Payment equals the 280G Payments.. If under such final determination the amount of the Excise Tax ultimately payable by the Employee is less than the amount of Excise Tax used in computing the Gross-Up Amount, then the Employee shall refund to the Company such amount so that the net amount retained by the Employee, after deduction of any Excise Tax (but not federal, state and local income and employment taxes)on the 280G Payments and any Excise Tax and federal, state or other amount pursuant to local income and employment taxes on the Gross-Up Payment, equals the 280G Payments. (c) For purposes of this SectionSection 4, within sixty (60) days after the Executive receives any refund Termination Date of the Employee within twenty-four (24) months of a Change of Control with respect to the Excise TaxCompany (or, the Executive shall promptly pay the Company the amount if an event other than termination of employment results in payment of parachute payments under Section 280G and it is reasonably possible that such refund within ten parachute payments could result in an excise tax, with sixty (1060) days of receipt by the Executive, on a grossed-up basis. If the Company deems it necessary or advisable to contest or appeal any assessment, or determination made by the Internal Revenue Service relating to the imposition of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”after such other event), the Executive covenants Company shall obtain, at its expense, the opinion (which need not be unqualified) of nationally recognized tax counsel (“Tax Counsel”) selected by the Compensation Committee of the Board, which sets forth (i) the 280G Base Amount; (ii) the aggregate present value of the payments in the nature of compensation to the Employee as prescribed in Section 280G(b)(2)(A)(ii); and agrees (iii) the amount and present value of any “excess parachute payment” within the meaning of Section 280G(b)(1). Such opinion shall be addressed to reasonably cooperate the Company and the Employee and shall be binding upon the Company and the Employee. For purposes of such opinion, the value of any non-cash benefits or any deferred payment or benefit shall be determined by an independent accounting firm selected by the Compensation Committee of the Company’s Board in accordance with the Company principles of Section 280G and regulations thereunder, which determination shall be evidenced in connection with the Excise Tax Contest/Appeal; provided, however, that a certificate of such firm addressed to the Company shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/AppealEmployee.

Excess Parachute Payment Gross-up. If it is determined, in the opinion of the CompanyBank’s independent accountants, in consultation, if necessary, with the CompanyBank’s independent legal counsel, that any amount paid under this Agreement in connection with a Termination Upon Change of Control, either separately or in conjunction with any other payments, benefits and entitlements received by the Executive in respect of a Change of Control hereunder or under any other plan or agreement under which the Executive participates or to which he is a party, would constitute an “Excess Parachute Payment” within the meaning of Section 280G of the Internal Revenue of 1986, as amended (the “Code”), and would thereby be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then in such event, the Company Bank shall pay to the Executive a “grossing-up” amount equal to the amount of such Excise Tax, plus all federal and state income or other taxes with respect to the payment of the amount of such Excise Tax, including all such taxes with respect to any such grossing-up amount. If, at a later date, the Internal Revenue Service assesses a deficiency against the Executive for the Excise Tax which is greater than that which was determined at the time such amounts were paid, then the Company Bank shall pay to the Executive the amount of such unreimbursed Excise Tax, plus any interest, penalties and reasonable professional fees or expenses incurred by the Executive as a result of such assessment, including all such taxes with respect to any such additional amount. The highest marginal tax rate applicable to individuals at the time of the payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto. The Company Bank shall withhold from any amounts paid under this Agreement the amount of any Excise Tax or other federal, state or local taxes then required to be withheld. Computations of the amount of any grossing-up supplemental compensation paid under this Section shall be conclusively made by the CompanyBank’s independent accountants, or other independent accountants retained by the CompanyBank, in consultation, if necessary, with the CompanyBank’s independent legal counsel. If, after the Executive receives any gross-up payments or other amount pursuant to this Section, the Executive receives any refund with respect to the Excise Tax, the Executive shall promptly pay the Company Bank the amount of such refund within ten (10) days of receipt by the Executive, on a grossed-up basis. If the Company Bank deems it necessary or advisable to contest or appeal any assessment, or determination made by the Internal Revenue Service relating to the imposition of an Excise Tax as described herein (an “Excise Tax Contest/Appeal”), the Executive covenants and agrees to reasonably cooperate with the Company Bank in connection with the Excise Tax Contest/Appeal; provided, however, that the Company Bank shall be responsible for all professional costs and expenses incurred by the Executive in connection with such Excise Tax Contest/Appeal.. XXXXXX GRILL Supplemental Executive Retirement Agreement