Common use of Additional Payment Clause in Contracts

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; and

Additional Payment. (a) If, notwithstanding If any of the provisions of Section 8(a)(ii), but subject to subsection payments provided for in this Agreement (b), it is ultimately determined by a court the "Contract Payments") or pursuant to a final determination by the Internal Revenue Service that any portion of the Total Payments is (as defined below) will be subject to the tax (the "Excise Tax") imposed by Section section 4999 of the Code (or any successor provision)Code, then the Company Corporation shall pay to the Executive Employee, no later than the fifth day following the earlier of the date on which such payment is made and the Date of Termination, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive Employee, after deduction of any Excise Tax on the Contract Payments and such other Total Payments and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, federal and any federal, state and local income tax income, employment and other taxes and Excise Tax upon the payment provided for by this Section 23 subsection, shall be equal to the Contract Payments and such other Total Payments. (b) For purposes of determining whether any payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any payments or benefits received or to be received by the Employee in connection with an event described in section 280(G)(b)(2)(A)(i) of the Code (hereinafter, a "change in control"), or the Employee's termination of employment pursuant to the terms of any plan, arrangement or agreement with Xxxxxxx, the Corporation, its successors, any person whose actions result in a change in control or any person affiliated with the Corporation or such person (together with the Contract Payments, the "Total Payments"), shall be treated as "parachute payments" within the meaning of section 28OG(b)(2) of the Code except to the extent that, in the opinion of tax counsel selected by the Corporation's independent auditors and acceptable to the Employee, the Total Payments do not constitute parachute payments, (ii) all "excess parachute payments" within the meaning of section 28OG(b)(1) shall be treated as subject to the Excise Tax except to the extent that, in the opinion of such tax counsel, such excess parachute payments represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4)(B) of the Code in excess of the base amount within the meaning of section 28OG(b)(3) of the Code, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Corporation's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation in the state and locality of the ExecutiveEmployee's domicile for income tax purposes residence on the date the Gross-Up Payment is madeDate of Termination, net of the maximum reduction in federal income taxes that which could be obtained from deduction of such state and local taxes. (bc) If legislation In the event that the Excise Tax is enacted that would require subsequently determined to be less than the Companyamount taken into account hereunder at the time of termination of the Employee's shareholders to approve this Agreementemployment, prior to a Change in Control, due solely the Employee shall repay to the provision contained Corporation at the time that the amount of such reduction in subsection Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (aplus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Employee if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Corporation shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined. (d) Notwithstanding any provision of this Agreement to the contrary, in addition to the payment of the Employee's Net SERP I Benefit as provided in Section 5(e)(ii), the Corporation shall pay the Employee from time to time additional amounts such that after all applicable federal and state and local income, employment and other taxes on the Employee's Net SERP I Benefit and on the additional amount payable under this Section 2314(d), then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (athe Employee has received the Employee's entire Net SERP I Benefit on an after-tax basis. Any additional amount due under this Section 14(d) shall be of no force due and effect; (ii) if payable to the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement Employee at the same shareholders' meeting time the income, employment or meetings at which other tax is assessed against the shareholders consider any such other agreement; andEmployee's Net SERP I Benefit whether or not the Employee's Net SERP I Benefit is then payable. The federal and state and local income tax rates for purposes of calculating the additional amount hereunder shall be determined in accordance with the last sentence of Section 14(b).

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "Gross-Up “Gross‑Up Payment"”) such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Gross‑Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Gross‑Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's ’s domicile for income tax purposes on the date the Gross-Up Gross‑Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's ’s shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' ’ meeting or meetings at which the shareholders consider any such other agreement; and (iii) the Company and the Executive shall use their best efforts to consider and agree in writing upon an amendment to this Section 23 such that, as amended, this Subsection would provide the Executive with the benefits intended to be afforded to the Executive by subsection (a) without requiring shareholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b)6 of this Agreement, it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments the Change of Control Benefits is subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive Employee, after deduction of (i) any Excise Tax and Tax; (ii) any interest charges federal, state or penalties local taxes arising in respect of the imposition of such Excise Tax Tax; and (but not iii) any federal, state or local income taxtaxes (including the Excise Tax) on the Total Payments, and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 23 7, shall be equal to the Total PaymentsChange of Control Benefits. For purposes of determining the amount of the Gross-Up Payment, the Executive The Company shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the make any Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's domicile for income tax purposes on under this Section 7(a) within thirty (30) days after the date on which the Gross-Up Payment is made, net of the maximum reduction in federal income applicable taxes that could be obtained from deduction of such state and local taxesare due. (b) If legislation is enacted that would require the Company's shareholders ’s stockholders to approve this Agreement, prior to a Change in of Control, due solely to the provision contained in subsection (a) of this Section 237, then : (i) from and after such time as shareholder stockholder approval would be required, until shareholder stockholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; ; (ii) if the Company seeks shareholder stockholder approval of any other agreement providing similar benefits to any other executive Employee of the Company, then the Company shall seek shareholder stockholder approval of this Agreement at the same shareholders' stockholders’ meeting or meetings at which the shareholders stockholders consider any such other agreement; andand (iii) the Company and the Employee shall use their best efforts to consider and agree in writing upon an amendment to this Section 7 such that, as amended, such Section would provide the Employee with the benefits intended to be afforded to the Employee by subsection (a) without requiring stockholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; and (iii) the Company and the Executive shall use their best efforts to consider and agree in writing upon an amendment to this Section 23 such that, as amended, this Subsection would provide the Executive with the benefits intended to be afforded to the Executive by subsection (a) without requiring shareholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b)6 of this Agreement, it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service IRS that any portion of Total Payments the Severance Benefits is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive Employee, after deduction of (i) any Excise Tax and Tax; (ii) any federal, state or local income tax, interest charges or penalties arising in respect of the imposition of such Excise Tax Tax; and (but not iii) any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and or Excise Tax imposed upon the payment provided for by this Section 23 7, shall be equal to the Total PaymentsSeverance Benefits. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the ExecutiveEmployee's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's shareholders stockholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 237, then then (i) from and after such time as shareholder stockholder approval would be required, until shareholder stockholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; ; (ii) if the Company seeks shareholder stockholder approval of any other agreement providing similar benefits to any other executive Employee of the Company, then the Company shall seek shareholder stockholder approval of this Agreement at the same shareholders' stockholders meeting or meetings at which the shareholders stockholders consider any such other agreement; andand (iii) the Company and the Employee shall use their best efforts to consider and agree in writing upon an amendment to this Section 7 such that, as amended, such Section would provide the Employee with the benefits intended to be afforded to the Employee by subsection (a) without requiring stockholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 22 shall be equal to the Total Payments. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's ’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's ’s shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 2322, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' shareholders meeting or meetings at which the shareholders consider any such other agreement; and (iii) the Company and the Executive shall use their best efforts to consider and agree in writing upon an amendment to this Section 22 such that, as amended, this Subsection would provide the Executive with the benefits intended to be afforded to the Executive by subsection (a) without requiring shareholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b)6 of this Agreement, it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service IRS that any portion of Total Payments the Severance Benefits is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive Executive, after deduction of (i) any Excise Tax and Tax; (ii) any federal, state or local income tax, interest charges or penalties arising in respect of the imposition of such Excise Tax Tax; and (but not iii) any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and or Excise Tax imposed upon the payment provided for by this Section 23 7, shall be equal to the Total PaymentsSeverance Benefits. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's shareholders stockholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 237, then then (i) from and after such time as shareholder stockholder approval would be required, until shareholder stockholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; ; (ii) if the Company seeks shareholder stockholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder stockholder approval of this Agreement at the same shareholders' stockholders meeting or meetings at which the shareholders stockholders consider any such other agreement; andand (iii) the Company and the Executive shall use their best efforts to consider and agree in writing upon an amendment to this Section 7 such that, as amended, such Section would provide the Executive with the benefits intended to be afforded to the Executive by subsection (a) without requiring stockholder approval.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection subsections (b) and (c), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any successor provision)) even though the reduction contemplated under Section 8(a)(ii) was applied in order to avoid application of the Excise Tax, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 22 shall be equal to the Total Payments. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's ’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted . The Gross-Up Payment shall be paid promptly following the date of the final determination by a court or the Internal Revenue Service, provided that if payment at such date would require cause the Company's shareholders Gross-Up Payment to approve this Agreement, prior to a Change in Control, due solely be subject to the provision contained in subsection (a) of this additional 20% tax imposed by Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive 409A of the CompanyCode, then the Company Gross-Up Payment shall seek shareholder approval instead be paid on December 31 of this Agreement at the same shareholders' meeting or meetings at tenth calendar year following the calendar year in which the shareholders consider any such other agreement; andExecutive’s Covered Termination occurs.

Additional Payment. (a) IfIn the event that it shall be determined that any payment or distribution by the Company to or for your benefit, notwithstanding paid or payable or distributed or distributable pursuant to the provisions terms of this Award Agreement (the “Payment”), would cause the Payment hereunder, in combination with any payments paid or payable, or distributed or distributable to you under any other agreement or arrangement, to constitute an “excess parachute payment” within the meaning of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "Excise Tax") imposed by Section 4999 280G of the Code (or any successor provision)Code, then the Company you shall pay to the Executive be paid an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive you after deduction of any Excise Tax and any interest charges or penalties in respect excise tax imposed under Section 4999 of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total PaymentsCode, and any federal, state and local income and employment tax and Excise Tax excise tax imposed upon the payment provided for by this Section 23 Gross-Up Payment shall be equal to the Total PaymentsPayment. For purposes of determining the amount of the Gross-Up Payment, the Executive (i) you shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation in the state and locality of your residence (or, if greater, the Executive's domicile for state and locality in which you are required to file a nonresident income tax purposes on return with respect to the date the Gross-Up Payment is madePayment), net of the maximum reduction in federal income taxes that could may be obtained from the deduction of such state and local taxes, (ii) the Payment shall be deemed to be the last of the amounts due to you, and (iii) the Gross-Up Payment shall relate solely to the Payment and shall not take into account, in determining the amount of the Gross-Up (except to determine the total amount in excess of the limit under Section 280G of the Code), any other payments. (b) If legislation is enacted that would require All determinations to be made under this Section 9 shall be made by the Company's shareholders to approve this Agreement, independent public accountant immediately prior to the Change of Control (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and you at least 10 days prior to any payment. Any such determination by the Accounting Firm shall be binding upon the Company and you. Within five days after the Accounting Firm’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of you such amounts as are then due to you under this Award Agreement. In addition, you must comply with such other rules as the Company or the Committee may require at the time of a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then. (ic) from All of the fees and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection expenses of the Accounting Firm in performing the determination referred to in subsections (ab) above shall be borne solely by the Company. The Company agrees to indemnify and hold harmless the Accounting Firm of no force and effect; from any and all claims, damages and expenses resulting from or relating to its determination pursuant to subsections (iib) if above, except for claims, damages or expenses resulting from the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive gross negligence or willful misconduct of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; andAccounting Firm.

Additional Payment. If any payment under this Agreement attributable to the Second Xxxxxx Option (a) If, notwithstanding the provisions of Section 8(a)(iias defined in paragraph 3.D(i)), but subject to subsection the Excluded Units (bas defined in paragraph 3.D(iii)), it is ultimately determined by a court the MMC Option or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is MMC Restricted Stock Units (the "Payments") will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provisionsimilar tax that may hereafter be imposed), then you shall be entitled to receive, at the Company shall pay to the Executive time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive you after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of on such Excise Tax (but not any federal, state or local income tax) on the Total Payments, Payments and any federal, state and local income and employment tax and Excise Tax upon the payment provided for by this Section 23 paragraph 4.F, shall be equal to the Total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all payments or benefits received or to be received by you in connection with a Change in Control of Xxxxxx or of MMC or your termination of employment with Xxxxxx (pursuant to this Agreement) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by MMC's independent auditors and acceptable to you such payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or otherwise not subject to the Excise Tax; (ii) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments or (2) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (1) above); and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by MMC's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation in the state and locality of the Executive's domicile for income tax purposes your residence on the date the such Gross-Up Payment is made, net of the maximum reduction in federal income taxes that which could be obtained from deduction of such state and local taxes. . In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of the Gross-Up Payment, you shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-up Payment attributable to such reduction (bplus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by you if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction) If legislation plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is enacted determined to exceed the amount taken into account hereunder at the time of the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), you shall be entitled to an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that would require the Company's shareholders amount of such excess is finally determined. Any Gross-Up Payment to approve be made to you under this Agreement, prior to a paragraph shall be payable within thirty (30) days of the date of the Change in ControlControl of MMC or change in control of Xxxxxx, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; andapplicable.

Additional Payment. On or before the sixtieth (a60th) If, notwithstanding day following ------------------ the provisions delivery of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by audited financial statements for the Internal Revenue Service that any portion of Total Payments is subject to Company and its subsidiaries for the tax 1998 fiscal year (the "Excise TaxAdditional Payment Date") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an Sellers the additional amount payment, if any, provided for in Exhibit 16.4 attached hereto and made a part hereof (the "Gross-Up Additional Payment") ), provided, however, that payment of the Additional Payment, or a portion thereof, may be deferred if and to the extent that such payment would itself cause a default under the Financing Documents; and, provided further, that to the net amount retained by extent the Executive after deduction Company is required to defer the payment of any Excise Tax portion of the Additional Payment in accordance with the foregoing clause, the Additional Payment (or unpaid portion thereof) shall accrue interest from the Additional Payment Date until paid at an annual rate equal to nine and three-quarters percent (9.75%), provided further, that Perseus, LLC and the relevant Subsidiary shall use commercially reasonable efforts to negotiate with the banks parties to the Financial Documents to exempt the payment of 12% of the Additional Payment to DFS under the Financial Documents. The Additional Payment (and any accrued but unpaid interest charges or penalties thereon) shall be fully paid (A) upon the consummation of an Approved Sale (as defined in respect the Shareholders' Agreement) unless such Approved Sale is a transaction whereby the shareholders of the imposition Company will become the beneficial owners of securities of the surviving entity in substantially the same proportion and no cash distributions are made to any shareholder of the Company in connection with the consummation of such Excise Tax Approved Sale and (but not B) prior to any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. For purposes of determining the amount distribution (other than a distribution of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality securities of the Executive's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (bCompany) If legislation is enacted that would require to the Company's shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive than payments of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; andAdditional Payment to DFS).

Additional Payment. (a) IfNotwithstanding any other provision of this Agreement, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that if any portion of Total Payments is subject to the tax (the "Excise Tax") imposed by Section 4999 any payment under this Agreement, or under any other agreement with or plan of the Code Company or its affiliates (or any successor provisionin the aggregate "Total Payments"), then the Company would constitute an "excess parachute payment", Executive shall pay to the Executive be paid an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive after deduction of any Excise Tax and excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), any interest charges or penalties in respect of the imposition of such Excise Tax excise tax (but not any federal, state or local income tax, or employment tax ) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. The Gross-Up Payment shall be made by the Company to the Executive as soon as practicable, but in no event beyond thirty (30) days from the later of (i) the date of the determination of the Gross-Up Payment or (ii) the date of the payments triggering the application of this Section 2.7(a) are made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation in the state and locality of the Executive's domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could may be obtained from the deduction of such state and local taxes. (b) If legislation For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meanings assigned to them in Section 280G of the Code and such "parachute payments" shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 1274(b)(2) of the Code (or any successor provision). Within fifteen (15) days following the date of notice by the Company to the Executive, or of the Executive to the Company, of its or his belief that there is enacted that would require a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company's shareholders to approve this Agreementexpense, prior to a Change in Control, due solely to shall obtain the provision contained in subsection opinion (awhich need not be unqualified) of this Section 23, then nationally recognized tax counsel (i"National Tax Counsel") from and after such time as shareholder approval would be required, until shareholder approval is obtained as required selected by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' meeting or meetings at which the shareholders consider any such other agreement; and's independent auditors and reasonably acceptable to the

Additional Payment. (a) IfNotwithstanding anything in this Agreement to the contrary, notwithstanding in the provisions event that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company or any affiliate which effectuates a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company, in either case, within the meaning of Section 8(a)(ii280G(b)(2)(A)(i) of the Code and the regulations promulgated thereunder (a "Change in Ownership"), but subject to subsection or for the benefit of Executive (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (Code, or any successor provisioninterest or penalties are incurred by 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 then, the Company shall pay to the Executive an additional amount payment (the a "Gross-Up Payment") in an amount such that the net amount retained after payment by the Executive after deduction of all taxes (including any Excise Tax and any interest charges or penalties in respect Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be Gross-Up Payment equal to the Total Excise Tax imposed upon the Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of federal income taxation in for the calendar year in which the Gross-Up Payment is to be made and and, (B) pay applicable state and local income taxes at the highest marginal rates rate of taxation for the calendar year in the state and locality of the Executive's domicile for income tax purposes on the date which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 13(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than $20,000 (U.S.), then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments as elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. (b) If legislation Subject to the provisions of Section 13(a), all determinations required to be made under this Section 13, including whether and when a Gross-Up Payment is enacted required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that would require is retained by the Company's shareholders to approve this Agreement, Company as of the date immediately prior to a the Change in Control, due solely Ownership (the "Accounting Firm") which shall provide detailed supporting calculations both to the provision contained Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in subsection Ownership, Executive may appoint another U.S. nationally recognized public accounting firm to make the determinations required hereunder (awhich accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 13(a) with respect to any Payments made to Executive shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return should not result in the imposition of a negligence or similar penalty. In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. The Determination by the Accounting Firm shall be binding upon the Company and Executive. (c) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (athe Code) shall be promptly paid by the Company to or for the benefit of no force Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and effect; any such Overpayment (iitogether with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the Company seeks shareholder approval of any other agreement providing similar benefits applicable Excise Tax has been paid to any other executive the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, then to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. (d) The parties hereto agree that this Section 13 supercedes paragraphs 4 of the Retention Agreement by and between the Company and the Executive dated October 8, 2001 (the "Retention Agreement") and of the Change in Control Agreement by and between Xxxxxxxxxxx and the Executive (the "CIC Agreement") and such paragraphs 4 shall seek shareholder approval no longer be in effect upon the sale of this the stock of the Company by Xxxxxxxxxxx. (e) The parties hereto agree that if amounts are payable under the Retention Agreement at with respect to a transaction or series of transactions no payments or benefits shall be payable under the CIC Agreement with respect to the same shareholders' meeting transaction or meetings at which the shareholders consider any such other agreement; andseries of transactions.

Additional Payment. (a) If, notwithstanding the provisions of Section 8(a)(ii), but subject to subsection (b), it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of Total Payments is subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive after deduction of any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 23 shall be equal to the Total Payments. 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's ’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. (b) If legislation is enacted that would require the Company's ’s shareholders to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then the Company shall seek shareholder approval of this Agreement at the same shareholders' ’ meeting or meetings at which the shareholders consider any such other agreement; and (iii) the Company and the Executive shall use their best efforts to consider and agree in writing upon an amendment to this Section 23 such that, as amended, this Subsection would provide the Executive with the benefits intended to be afforded to the Executive by subsection (a) without requiring shareholder approval.

Additional Payment. (a) IfIn the event that any payment or benefit received or to be received by the Executive pursuant to this Agreement or any other Company plan, notwithstanding agreement or arrangement (collectively, the provisions of Section 8(a)(ii), but "Payments") would be subject to subsection (b), it is ultimately determined the excise tax imposed by a court or pursuant to a final determination by Section 4999 of the Internal Revenue Service that Code of 1986, as amended (the "Code"), or any portion of Total Payments is subject to the tax similar or successor provision (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision), then the Company shall pay to the Executive within ninety (90) days of the date the Executive becomes subject to the Excise Tax, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive Executive, after deduction of (1) any Excise Tax and any interest charges or penalties in respect of the imposition of such Excise Tax (but not any federal, state or local income tax) on the Total Payments, Payments and (2) any federal, state and local income or employment tax and Excise Tax upon the payment provided for by this Section 23 paragraph, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax: Any other payments or benefits received or to be received by the Executive in connection with transactions contemplated by a Change in Control event or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company), shall be treated as "parachute payments" within the meaning of Section 280G of the Code or any similar or successor provision, and all "excess parachute payments" within the meaning of Section 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of the Company's independent auditors such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G (or any similar or successor provision of the Code) in excess of the base amount within the meaning of Section 280G (or any similar or successor provision of the Code), or are otherwise not subject to the Excise Tax. The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Payments or (ii) the amount of the excess parachute payments within the meaning of Section 280G after applying paragraph (b)(1) above. The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Section 280G of the Code. (c) 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 in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation in the state and locality of the Executive's domicile for income tax purposes residence on the date the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that which could be obtained from deduction of such state and local taxes. (bd) If legislation In the event that the Excise Tax is enacted that would require determined to be less than the Company's shareholders amount taken into account hereunder, the Executive shall repay to approve this Agreement, prior to a Change in Control, due solely to the provision contained in subsection (a) of this Section 23, then (i) from and after such time as shareholder approval would be required, until shareholder approval is obtained as required by such legislation, subsection (a) shall be of no force and effect; (ii) if the Company seeks shareholder approval of any other agreement providing similar benefits to any other executive of the Company, then at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. (e) In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall seek shareholder approval make an additional gross-up payment in respect of this Agreement such excess (plus any interest payable with respect to such excess) at the same shareholders' meeting or meetings at which time that the shareholders consider any amount of such other agreement; andexcess is finally determined.