Common use of Parachute Payment Gross-Up Clause in Contracts

Parachute Payment Gross-Up. If any payment, benefit, or distribution of any type to or for the benefit of Employee, whether paid or payable, provided or to be provided, or distributed or distributable pursuant to the terms of this Agreement or otherwise (collectively, the “Parachute Payments”) would subject Employee to the excise tax imposed under Section 4999 of the Code (the “Excise Tax”), the Company will make an additional payment to Employee in an amount (the “Gross-Up Payment”) such that, after payment all taxes and any interest or penalties imposed with respect to such taxes (including, without limitation, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes imposed under Section 409A of the Code) (the “Parachute Tax”) on both the Parachute Payments and the Gross-Up Payment, Employee will be in the same position as if no Parachute Tax had been imposed; provided, that in no event may the Gross-Up Payment exceed $2,000,000. Any Gross-Up Payment shall be timely paid by the Company on Employee’s behalf directly to the appropriate taxing authorities when due, but in all events no later than the last day of the calendar year after the calendar year in which the Parachute Tax shall be paid. The determinations with respect to this Section 13(b) shall be made by an independent accounting firm selected by the Company and reasonably acceptable to Employee (the “Accounting Firm”) paid by the Company.