Common use of Excise Tax Gross-Up Clause in Contracts

Excise Tax Gross-Up. If any payment to Executive pursuant to this Agreement or any other payment or benefit from the Company, any Affiliate, any shareholder of the Company or any other person is determined to be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any United States federal, state, local or other law (the “Excise Tax”), then Executive shall receive a Tax Gross-Up Payment with respect to all such excise taxes and similar taxes. The “Tax Gross-Up Payment” shall mean an amount payable to the Executive such that, after payment of all federal, state and local taxes on such Tax Gross-Up Payment, there remains a balance sufficient to pay the Excise Tax being reimbursed. The Company’s outside auditor (the “Auditor”) shall determine whether any payment under this Agreement is subject to an Excise Tax and, if so, the amount and timing of the Tax Gross-Up Payment. The foregoing notwithstanding, if any payments subject to the Excise Tax exceed the amount that may be paid to Executive without the imposition of the Excise Tax (the “Allowable Amount”) by an amount which is not more than 10% of the Allowable Amount, the Executive shall relinquish the right to receive such payments to the extent and only to the extent that such payments exceed the Allowable Amount. In the event that Executive is required to relinquish a portion of the compensation otherwise due Executive by application of the immediately preceding sentence, compensation shall be relinquished in the following order i) stock option acceleration commencing with options having the highest exercise price, ii) the accelerated vesting of restricted stock or other equity awards and iii) cash compensation.

Excise Tax Gross-Up. If In the event that any payment or benefit received or to Executive be received pursuant to this Agreement (but determined without regard to any additional payment required under this Section 4) (the “Severance Payments”), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any other payment similar or benefit from the Companysuccessor provision to 280G, any Affiliate, any shareholder of the Company or any other person is determined to and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any similar tax payable under any United States federal, state, local or other law successor provision to Section 4999 (the “Excise Tax”), then Executive shall receive a Tax Gross-Up Payment or any interest or penalties payable with respect to all such excise taxes tax (such excise tax, together with any such interest and similar taxes. The penalties, are hereinafter collectively referred to as the “Tax Excise Tax”), then the Employee shall be entitled to receive from the Corporation an additional payment (the “Gross-Up Payment” shall mean ”) in an amount payable to the Executive such that, that after payment by the Employee of all federal, state and local taxes on such Tax (including any Excise Tax) imposed upon the Gross-Up Payment, there remains a balance sufficient the Employee retains an amount of the Gross-Up Payment equal to pay the Excise Tax being reimbursedimposed upon the Severance Payments. The Company’s outside auditor (the “Auditor”) shall determine whether any payment under this Agreement is subject to an Excise Tax and, if so, For purposes of determining the amount and timing of the Tax Gross-Up Payment. The foregoing notwithstanding, if any payments subject the Employee shall be deemed to (i) pay federal income taxes at the Excise Tax exceed highest marginal rates of federal income taxation for the amount that may calendar year in which the Gross-Up Payment is to be paid made, and (ii) 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 Executive without the imposition be made, net of the Excise Tax (the “Allowable Amount”) by an amount maximum reduction in federal income taxes which is not more than 10% could be obtained from deduction of the Allowable Amount, the Executive shall relinquish the right to receive such payments to the extent state and only to the extent that such payments exceed the Allowable Amount. In the event that Executive is required to relinquish a portion of the compensation otherwise due Executive by application of the immediately preceding sentence, compensation shall be relinquished in the following order i) stock option acceleration commencing with options having the highest exercise price, ii) the accelerated vesting of restricted stock or other equity awards and iii) cash compensationlocal taxes.