Common use of Gross-Up Provisions Clause in Contracts

Gross-Up Provisions. In the event that Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (collectively the “Company Payments”), and such Company Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Company Payments and any U.S. federal, state, and for local income or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any U.S. federal, state, and local income or payroll tax on the Company Payments, shall be equal to the Company Payments. Notwithstanding the foregoing, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that if the Company Payments are reduced by the amount necessary such that the receipt of the Company Payments would not give rise to any Excise Tax (the “Reduced Payment”) and the Reduced Payment would not be less than 90.0% of the Company Payments, then no Gross-Up Payment shall be made to Executive and the Company Payments, in the aggregate, shall be reduced to the Reduced Payments. If the Reduced Payments is to be effective, payments shall be reduced in the following order (1) acceleration of vesting of any stock options for which the exercise price exceeds the then fair market value, (2) any cash severance based on a multiple of Base Salary or Bonus, (3) any other cash amounts payable to Executive, (4) any benefits valued as parachute payments; and (5) acceleration of vesting of any equity not covered by (1) above, unless Executive elects another method of reduction by written notice to the Company. In the event that the Internal Revenue Service or court ultimately makes a determination that the excess parachute payments plus the base amount is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Payment, as applicable to reflect the final determination and the resulting impact on whether the preceding paragraph applies.

Gross-Up Provisions. In (a) If the event that Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts is, in the “nature opinion of compensation” (whether pursuant to a nationally recognized accounting firm jointly selected by the terms of this Agreement or any other plan, arrangement or agreement with Executive and the Company, any person whose actions result expected to pay an excise tax on "excess parachute payments" (as defined in a change of ownership or effective control covered by Section 280G(b)(2280G(b) of the Internal Revenue Code or any person affiliated with the Company or such person) of 1986, as a result of such change in ownership or effective control (collectively the “Company Payments”), and such Company Payments will be subject to the tax amended (the “Excise Tax”"Code")) imposed by under Section 4999 of the Code (and as a result of an acceleration of the vesting of options or for any similar tax that may hereafter be imposed by any taxing authority) other reason, the Company shall have an absolute and unconditional obligation to pay the Executive in accordance with the terms of this Section 10 the expected amount of such taxes. In addition, the Company shall have an absolute and unconditional obligation to pay the Executive such additional amounts as are necessary to place the Executive in the exact same financial position that he would have been in if he had not incurred any expected tax liability under Section 4999 of the Code; provided that the Company shall in no event pay the Executive any amounts with respect to any penalties or interest due under any provision of the Code. The determination of the exact amount, if any, of any expected "excess parachute payments" and any expected tax liability under Section 4999 of the Code shall be made by the nationally-recognized independent accounting firm selected by the Executive and the Company. The fees and expenses of such accounting firm shall be paid by the Company in advance. The determination of such accounting firm shall be final and binding on the parties. The Company irrevocably agrees to pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, in immediately available funds to an account designated in writing by the Executive, any amounts to be paid under this Section 10 within two days after deduction of any Excise Tax on receipt by the Company Payments and any U.S. federalof written notice from the accounting firm which sets forth such accounting firm's determination. In addition, state, and for local income in the event that such payments are not sufficient to pay all excise taxes on "excess parachute payments" under Section 4999 of the Code as a result of an acceleration of the vesting of options or payroll tax upon the Gross-up Payment provided for by this paragraph (a), but before deduction for any U.S. federalother reason and to place the Executive in the exact same financial position that he would have been in if he had not incurred any expected tax liability under Section 4999 of the Code as a result of a change in control, state, and local income or payroll tax on then the Company Payments, shall have an absolute and unconditional obligation to pay the Executive such additional amounts as may be equal necessary to pay such excise taxes and place the Company PaymentsExecutive in the exact same financial position that he would have been had he not incurred any tax liability as a result of a change in control under the Code. Notwithstanding the foregoing, if it shall be determined in the event that a written ruling (whether public or private) of the Internal Revenue Service ("IRS") is obtained by or on behalf of the Company or the Executive, which ruling expressly provides that the Executive is not required to pay, or is entitled to a Gross-Up Paymentrefund with respect to, but that if all or any portion of such excise taxes or additional amounts, the Executive shall promptly reimburse the Company Payments in an amount equal to all amounts paid to the Executive pursuant to this Section 10 less any excise taxes or additional amounts which remain payable by, or are reduced by not refunded to, the amount necessary Executive after giving effect to such that the receipt IRS ruling. Each of the Company Payments would not give rise to any Excise Tax (the “Reduced Payment”) and the Reduced Payment would not be less than 90.0% Executive agrees to promptly notify the other party if it receives any such IRS ruling. (b) The provisions of the Company Payments, then no Gross-Up Payment this Section 10 shall be made to Executive and the Company Payments, in the aggregate, shall be reduced to the Reduced Payments. If the Reduced Payments is to be effective, payments shall be reduced in the following order (1) acceleration survive any termination of vesting of any stock options for which the exercise price exceeds the then fair market value, (2) any cash severance based on a multiple of Base Salary or Bonus, (3) any other cash amounts payable to Executive, (4) any benefits valued as parachute payments; and (5) acceleration of vesting of any equity not covered by (1) above, unless Executive elects another method of reduction by written notice to the Company. In the event that the Internal Revenue Service or court ultimately makes a determination that the excess parachute payments plus the base amount is an amount other than as determined initially, an appropriate adjustment shall be made with regard to the Gross-Up Payment or Reduced Payment, as applicable to reflect the final determination and the resulting impact on whether the preceding paragraph appliesthis Agreement.