Common use of Parachute Payment Excise Tax Clause in Contracts

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx for Xxxx'x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x employment with the Company or a Change of Control (a "Payment" or "Payments"), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx 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 Xxxx will be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Xxxx of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x failure to file timely a tax return or pay taxes shown due on Xxxx'x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the Company shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Xxxx within fifteen (15) days of the date of Xxxx'x termination, if applicable, or such other time as requested by Xxxx (provided Xxxx reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the Xxxx, the Company shall furnish Xxxx, at the Company's expense, with an opinion reasonably acceptable to Xxxx from the Company's accounting firm (or an accounting firm of equivalent stature reasonably acceptable to Xxxx) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 shall be paid by the Company to Xxxx within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "Excess Payment") or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "Underpayment"). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx from any governmental taxing authority that Xxxx'x tax liability (whether in respect of Xxxx'x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x failure to file timely a tax return or pay taxes shown due on Xxxx'x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx had previously received a Gross-Up Payment. A "Final Determination" shall be deemed to have occurred when Xxxx has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx Executive for Xxxx'x Executive's benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Executive's employment with the Company or a Change of Control (a "Payment" or "Payments"), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx 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 Xxxx Executive will be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Xxxx Executive of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Executive's failure to file timely a tax return or pay taxes shown due on Xxxx'x Executive's return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the Company shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Xxxx Executive within fifteen (15) days of the date of Xxxx'x Executive's termination, if applicable, or such other time as requested by Xxxx Executive (provided Xxxx Executive reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the XxxxExecutive, the Company shall furnish XxxxExecutive, at the Company's expense, with an opinion reasonably acceptable to Xxxx Executive from the Company's accounting firm (or an accounting firm of equivalent stature reasonably acceptable to XxxxExecutive) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 shall be paid by the Company to Xxxx Executive within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "Excess Payment") or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "Underpayment"). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx Executive from any governmental taxing authority that Xxxx'x Executive's tax liability (whether in respect of Xxxx'x Executive's current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx Executive shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx Executive an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Executive's failure to file timely a tax return or pay taxes shown due on Xxxx'x Executive's return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx Executive had previously received a Gross-Up Payment. A "Final Determination" shall be deemed to have occurred when Xxxx Executive has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Executive's tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x Executive's applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx Executive to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx Xxxxxx for Xxxx'x Xxxxxx'x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Xxxxxx'x employment with the Company or a Change of Control (a "Payment" or "Payments"), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx Xxxxxx 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 Xxxx Xxxxxx will be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Xxxx Xxxxxx of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx'x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx'x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx Xxxxxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the Company shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Xxxx Xxxxxx within fifteen (15) days of the date of Xxxx'x Xxxxxx'x termination, if applicable, or such other time as requested by Xxxx Xxxxxx (provided Xxxx Xxxxxx reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the XxxxXxxxxx, the Company shall furnish XxxxXxxxxx, at the Company's expense, with an opinion reasonably acceptable to Xxxx Xxxxxx from the Company's accounting firm (or an accounting firm of equivalent stature reasonably acceptable to XxxxXxxxxx) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 shall be paid by the Company to Xxxx Xxxxxx within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "Excess Payment") or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "Underpayment"). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx Xxxxxx from any governmental taxing authority that Xxxx'x Xxxxxx'x tax liability (whether in respect of Xxxx'x Xxxxxx'x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx Xxxxxx shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx Xxxxxx an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx'x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx'x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx Xxxxxx had previously received a Gross-Up Payment. A "Final Determination" shall be deemed to have occurred when Xxxx Xxxxxx has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Xxxxxx'x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx Xxxxxx and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x Xxxxxx'x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx Xxxxxx to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx Xxxxxx is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx Butera for Xxxx'x Xxxxxx’x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Xxxxxx’x employment with the Company or a Change of Control (a "“Payment" ” or "“Payments"”), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx Butera 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 Xxxx Butera will be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Xxxx Butera of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx Butera retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the The Company shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Xxxx Butera within fifteen (15) days of the date of Xxxx'x Xxxxxx’x termination, if applicable, or such other time as requested by Xxxx Butera (provided Xxxx Butera reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the XxxxButera, the Company shall furnish XxxxButera, at the Company's ’s expense, with an opinion reasonably acceptable to Xxxx Butera from the Company's ’s accounting firm (or an accounting firm of equivalent stature reasonably acceptable to XxxxButera) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 section 7 shall be paid by the Company to Xxxx Butera within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "“Excess Payment"”) or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "“Underpayment"”). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx Butera from any governmental taxing authority that Xxxx'x Xxxxxx’x tax liability (whether in respect of Xxxx'x Xxxxxx’x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx Butera shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx Butera an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx Butera had previously received a Gross-Up Payment. A "“Final Determination" ” shall be deemed to have occurred when Xxxx Butera has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Xxxxxx’x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx Butera and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x x Xxxxxx’x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx Butera to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx Butera is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx Xxxxxx for Xxxx'x Xxxxxx’x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Xxxxxx’x employment with the Company or a Change of Control (a "“Payment" ” or "“Payments"”), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx Xxxxxx 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 Xxxx Xxxxxx will be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Xxxx Xxxxxx of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx Xxxxxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the Company shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Xxxx Xxxxxx within fifteen (15) days of the date of Xxxx'x Xxxxxx’x termination, if applicable, or such other time as requested by Xxxx Xxxxxx (provided Xxxx Xxxxxx reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the XxxxXxxxxx, the Company shall furnish XxxxXxxxxx, at the Company's ’s expense, with an opinion reasonably acceptable to Xxxx Xxxxxx from the Company's ’s accounting firm (or an accounting firm of equivalent stature reasonably acceptable to XxxxXxxxxx) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 section 7 shall be paid by the Company to Xxxx Xxxxxx within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "“Excess Payment"”) or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "“Underpayment"”). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx Xxxxxx from any governmental taxing authority that Xxxx'x Xxxxxx’x tax liability (whether in respect of Xxxx'x Xxxxxx’x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx Xxxxxx shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx Xxxxxx an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx Xxxxxx had previously received a Gross-Up Payment. A "“Final Determination" ” shall be deemed to have occurred when Xxxx Xxxxxx has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Xxxxxx’x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx Xxxxxx and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x Xxxxxx’x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx Xxxxxx to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx Xxxxxx is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx Butera for Xxxx'x Xxxxxx’x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Xxxxxx’x employment with the Company or a Change of Control (a "“Payment" ” or "“Payments"”), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx Butera 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 Xxxx Butera will be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Xxxx Butera of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx Butera retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the The Company shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Xxxx Butera within fifteen (15) days of the date of Xxxx'x Xxxxxx’x termination, if applicable, or such other time as requested by Xxxx Butera (provided Xxxx Butera reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the XxxxButera, the Company shall furnish XxxxButera, at the Company's ’s expense, with an opinion reasonably acceptable to Xxxx Butera from the Company's ’s accounting firm (or an accounting firm of equivalent stature reasonably acceptable to XxxxButera) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 shall be paid by the Company to Xxxx Butera within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "“Excess Payment"”) or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "“Underpayment"”). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx Butera from any governmental taxing authority that Xxxx'x Xxxxxx’x tax liability (whether in respect of Xxxx'x Xxxxxx’x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx Butera shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx Butera an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxxxx’x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx Butera had previously received a Gross-Up Payment. A "“Final Determination" ” shall be deemed to have occurred when Xxxx Butera has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Xxxxxx’x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx Butera and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x x Xxxxxx’x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx Butera to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx Butera is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.

Parachute Payment Excise Tax. (a) In the event that any payment or benefit (within the meaning of Section 280G(b)(2) of the Code) to Xxxx for Xxxx'x Xxxx’x benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, the Xxxx'x Xxxx’x employment with the Company or a Change of Control (a "“Payment" ” or "“Payments"”), would be subject to the excise tax imposed by Code Section 4999, or any interest or penalties are incurred by Xxxx 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 Xxxx will be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by Xxxx of all taxes (including any interest or penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxx’x return) imposed with respect to such taxes and the Excise Tax), including any Excise Tax imposed upon the Gross-Up Payment, Xxxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of such Gross-Up Payment shall be made by the Company. the Company shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Xxxx within fifteen (15) days of the date of Xxxx'x Xxxx’x termination, if applicable, or such other time as requested by Xxxx (provided Xxxx reasonably believes that any of the Payments may be subject to the Excise Tax). If requested by the Xxxx, the Company shall furnish Xxxx, at the Company's ’s expense, with an opinion reasonably acceptable to Xxxx from the Company's ’s accounting firm (or an accounting firm of equivalent stature reasonably acceptable to Xxxx) that there is a reasonable basis for the Determination. Any Gross-Up Payment determined pursuant to this paragraph 6 section 7 shall be paid by the Company to Xxxx within five (5) days of receipt of the Determination. (c) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an "“Excess Payment"”) or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an "“Underpayment"”). (d) An Underpayment shall be deemed to have occurred (A) upon notice (formal or informal) to Xxxx from any governmental taxing authority that Xxxx'x Xxxx’x tax liability (whether in respect of Xxxx'x Xxxx’x current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments with respect to which the Company has failed to make a sufficient Gross-Up Payment, (B) upon a determination by a court, or (C) by reason of determination by the Company (which shall include the position taken by the Company, together with its consolidated group, on its federal income tax return). If an Underpayment occurs, Xxxx shall promptly notify the Company and the Company shall promptly, but in any event at least five (5) days prior to the date on which the applicable government taxing authority has requested payment, pay to Xxxx an additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties (other than interest and penalties imposed by reason of Xxxx'x Xxxx’x failure to file timely a tax return or pay taxes shown due on Xxxx'x Xxxx’x return) imposed on the Underpayment. (e) An Excess Payment shall be deemed to have occurred upon a Final Determination (as hereinafter defined) that the Excise Tax shall not be imposed upon a Payment or Payments (or portion thereof) with respect to which Xxxx had previously received a Gross-Up Payment. A "“Final Determination" ” shall be deemed to have occurred when Xxxx has received from the applicable government taxing authority a refund of taxes or other reduction in Xxxx'x Xxxx’x tax liability by reason of the Excise Payment and upon either (A) the date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority which finally and conclusively binds Xxxx and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (B) the statute of limitations with respect to Xxxx'x Xxxx’x applicable tax return has expired. If an Excess Payment is determined to have been made, the amount of the Excess Payment shall be repaid by Xxxx to the Company unless, and only to the extent that, the repayment would either reduce the amount on which Xxxx is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. (f) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Determination, an Excise Tax will be imposed on any Payment or Payments, the Company shall pay to the applicable government taxing authorities, as Excise Tax withholding, the amount of the Excise Tax that the Company has actually withheld from the Payment or Payments.