Common use of Tax Gross-Up Payment for Excise Taxes Clause in Contracts

Tax Gross-Up Payment for Excise Taxes. This Section 5(c)(i) shall apply if the shares of the Company’s common Exhibit 10.1 stock, $0.0001 par value (the “Shares”), are not listed on a national securities exchange. (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the amount of any compensation, payment or distribution by the Employers to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, 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”) and the Executive’s Aggregate Payments result in the Executive receiving total “parachute payments” within the meaning of Section 280G(b)(2) of the Code, which equal at least 110 percent of the maximum amount the Executive would be entitled to receive without being subject to the Excise Tax (the “Maximum Amount”), then the Executive shall be entitled to receive an additional payment or payments (collectively, the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Aggregate Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this Section 5(c)(i)(A), and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Aggregate Payments. (B) Subject to the provisions of Section 5(c)(i)(C) below, all determinations required to be made under this Section 5(c), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Employers (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Employers and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income Exhibit 10.1 taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment, if any, as determined pursuant to this Section 5(c)(i)(B), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax payment is due. Any determination by the Accounting Firm shall be binding upon the Employers and the Executive. (C) If the Internal Revenue Service adjusts the computation of the Employers and as a result, the Executive did not receive a sufficient Gross-Up Payment, the Employers shall reimburse the Executive for the full amount necessary to make the Executive whole, plus a market rate of interest, as reasonably determined by the Compensation Committee. If, after a Gross-Up Payment by the Employers on behalf of the Executive pursuant to this Section 5(c)(i)(A), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Employers the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (D) If the Executive’s Aggregate Payments would result in less than 110 percent of the Maximum Amount, the Executive’s Aggregate Payments shall be capped at the Maximum Amount. Any reduction shall be in the order provided in Section 5(c)(ii)(A) below.

Tax Gross-Up Payment for Excise Taxes. This Section 5(c)(i) shall apply if the shares of the Company’s common Exhibit 10.1 10.2 stock, $0.0001 par value (the “Shares”), are not listed on a national securities exchange. (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the amount of any compensation, payment or distribution by the Employers to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, 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”) and the Executive’s Aggregate Payments result in the Executive receiving total “parachute payments” within the meaning of Section 280G(b)(2) of the Code, which equal at least 110 percent of the maximum amount the Executive would be entitled to receive without being subject to the Excise Tax (the “Maximum Amount”), then the Executive shall be entitled to receive an additional payment or payments (collectively, the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Aggregate Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this Section 5(c)(i)(A), and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Aggregate Payments. (B) Subject to the provisions of Section 5(c)(i)(C) below, all determinations required to be made under this Section 5(c), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Employers (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Employers and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income Exhibit 10.1 10.2 taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment, if any, as determined pursuant to this Section 5(c)(i)(B), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax payment is due. Any determination by the Accounting Firm shall be binding upon the Employers and the Executive. (C) If the Internal Revenue Service adjusts the computation of the Employers and as a result, the Executive did not receive a sufficient Gross-Up Payment, the Employers shall reimburse the Executive for the full amount necessary to make the Executive whole, plus a market rate of interest, as reasonably determined by the Compensation Committee. If, after a Gross-Up Payment by the Employers on behalf of the Executive pursuant to this Section 5(c)(i)(A), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Employers the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (D) If the Executive’s Aggregate Payments would result in less than 110 percent of the Maximum Amount, the Executive’s Aggregate Payments shall be capped at the Maximum Amount. Any reduction shall be in the order provided in Section 5(c)(ii)(A) below.

Tax Gross-Up Payment for Excise Taxes. This Section 5(c)(i) shall apply if the shares of the Company’s common Exhibit 10.1 stock, $0.0001 par value (the “Shares”), are not listed on a national securities exchange. (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the amount of any compensation, payment or distribution by the Employers to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner Exhibit 10.5 consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, 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”) and the Executive’s Aggregate Payments result in the Executive receiving total “parachute payments” within the meaning of Section 280G(b)(2) of the Code, which equal at least 110 percent of the maximum amount the Executive would be entitled to receive without being subject to the Excise Tax (the “Maximum Amount”), then the Executive shall be entitled to receive an additional payment or payments (collectively, the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Aggregate Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this Section 5(c)(i)(A), and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Aggregate Payments. (B) Subject to the provisions of Section 5(c)(i)(C) below, all determinations required to be made under this Section 5(c), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Employers (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Employers and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income Exhibit 10.1 taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment, if any, as determined pursuant to this Section 5(c)(i)(B), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax Exhibit 10.5 payment is due. Any determination by the Accounting Firm shall be binding upon the Employers and the Executive. (C) If the Internal Revenue Service adjusts the computation of the Employers and as a result, the Executive did not receive a sufficient Gross-Up Payment, the Employers shall reimburse the Executive for the full amount necessary to make the Executive whole, plus a market rate of interest, as reasonably determined by the Compensation Committee. If, after a Gross-Up Payment by the Employers on behalf of the Executive pursuant to this Section 5(c)(i)(A), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Employers the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (D) If the Executive’s Aggregate Payments would result in less than 110 percent of the Maximum Amount, the Executive’s Aggregate Payments shall be capped at the Maximum Amount. Any reduction shall be in the order provided in Section 5(c)(ii)(A) below.

Tax Gross-Up Payment for Excise Taxes. This Section 5(c)(i) shall apply if the shares of the Company’s common Exhibit 10.1 10.4 stock, $0.0001 par value (the “Shares”), are not listed on a national securities exchange. (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the amount of any compensation, payment or distribution by the Employers to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, 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”) and the Executive’s Aggregate Payments result in the Executive receiving total “parachute payments” within the meaning of Section 280G(b)(2) of the Code, which equal at least 110 percent of the maximum amount the Executive would be entitled to receive without being subject to the Excise Tax (the “Maximum Amount”), then the Executive shall be entitled to receive an additional payment or payments (collectively, the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Aggregate Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this Section 5(c)(i)(A), and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Aggregate Payments. (B) Subject to the provisions of Section 5(c)(i)(C) below, all determinations required to be made under this Section 5(c), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Employers (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Employers and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income Exhibit 10.1 10.4 taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment, if any, as determined pursuant to this Section 5(c)(i)(B), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax payment is due. Any determination by the Accounting Firm shall be binding upon the Employers and the Executive. (C) If the Internal Revenue Service adjusts the computation of the Employers and as a result, the Executive did not receive a sufficient Gross-Up Payment, the Employers shall reimburse the Executive for the full amount necessary to make the Executive whole, plus a market rate of interest, as reasonably determined by the Compensation Committee. If, after a Gross-Up Payment by the Employers on behalf of the Executive pursuant to this Section 5(c)(i)(A), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Employers the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (D) If the Executive’s Aggregate Payments would result in less than 110 percent of the Maximum Amount, the Executive’s Aggregate Payments shall be capped at the Maximum Amount. Any reduction shall be in the order provided in Section 5(c)(ii)(A) below.

Tax Gross-Up Payment for Excise Taxes. This Section 5(c)(i) shall apply if the shares of the Company’s common Exhibit 10.1 stock, $0.0001 par value (the “Shares”), are not listed on a national securities exchange. (A) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that the amount of any compensation, payment or distribution by the Employers to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Code and the applicable regulations thereunder (the “Aggregate Payments”), would be subject to the excise tax imposed by Section 4999 of the Code, 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 Exhibit 10.3 referred to as the “Excise Tax”) and the Executive’s Aggregate Payments result in the Executive receiving total “parachute payments” within the meaning of Section 280G(b)(2) of the Code, which equal at least 110 percent of the maximum amount the Executive would be entitled to receive without being subject to the Excise Tax (the “Maximum Amount”), then the Executive shall be entitled to receive an additional payment or payments (collectively, the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Aggregate Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this Section 5(c)(i)(A), and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Aggregate Payments. (B) Subject to the provisions of Section 5(c)(i)(C) below, all determinations required to be made under this Section 5(c), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Employers (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Employers and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Employers or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income Exhibit 10.1 taxes at the highest marginal rates of individual taxation in the state and locality of the Executive’s residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment, if any, as determined pursuant to this Section 5(c)(i)(B), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax payment is due. Any determination by the Accounting Firm shall be binding upon the Employers and the Executive. (C) If the Internal Revenue Service adjusts the computation of the Employers and as a result, the Executive did not receive a sufficient Gross-Up Payment, the Employers shall reimburse the Executive for the full amount necessary Exhibit 10.3 to make the Executive whole, plus a market rate of interest, as reasonably determined by the Compensation Committee. If, after a Gross-Up Payment by the Employers on behalf of the Executive pursuant to this Section 5(c)(i)(A), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Employers the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (D) If the Executive’s Aggregate Payments would result in less than 110 percent of the Maximum Amount, the Executive’s Aggregate Payments shall be capped at the Maximum Amount. Any reduction shall be in the order provided in Section 5(c)(ii)(A) below.