Common use of Additional Payments by Company Clause in Contracts

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amendedCode, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. In addition, Company may use reasonable tax planning options to mitigate the effects of the Excise Tax and Executive agrees to cooperate fully with Company in using all available tax planning options to mitigate the effects of the Excise Tax; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with using such tax planning options and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s use of such tax planning options.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”"), Company shall pay to Executive an additional payment (a “"Gross-up Payment”") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s 's action. If, as a result of Company’s 's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. (a) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment, and any Gross-up Payment so determined shall be paid to Executive as a lump-sum payment on the date the related Payment is made. Unless withheld and remitted by the Company, Executive shall timely remit any required Excise Tax payments to the Internal Revenue Service. (b) Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. (c) Any Gross-up Payment, reimbursement, indemnification or in-kind provision of expenses under clause (b) shall be made by Company to Executive promptly after incurrence thereof by Executive but in no event later than the end of the calendar year next following the calendar year in which Executive remits the related taxes that are the subject of the audit or litigation to the Internal Revenue Service (or, if no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed, settled or otherwise resolved) provided, that Executive must provide reasonable documentation to Company to substantiate taxes paid and expenses incurred. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amendedCode, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. In addition, Company may use reasonable tax planning options to mitigate the effects of the Excise Tax and Executive agrees to cooperate fully with Company in using all available tax planning options to mitigate the effects of the Excise Tax; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with using such tax planning options and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s use of such tax planning options.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment payments under this Agreement or distribution by any other compensation, benefit or other amounts payable from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be Executive are subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or amended (the “Code”) (including any applicable interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), no such payment (“Parachute Payment”) shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld from payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional payment amount (a the “Gross-up Up Payment”) in an amount such that after payment the net amount retained by Executive (after deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Parachute Payments, taxes based upon the Tax Rate (as defined below) upon the payment provided for by this Section 5.3 and Excise Tax upon the payment provided for by this Section 5.3), shall be equal to the amount Executive would have received if no Excise Tax had been imposed. A Tax counsel chosen by the Company’s independent auditors, provided such person is reasonably acceptable to Executive (“Tax Counsel”), shall determine in good faith whether any Gross-up Paymentof the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax, and Tax Counsel shall promptly notify Executive retains an of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company’s reasonable good faith determination. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company promptly following the date that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (without interest). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (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 pay Executive an additional amount with respect to the Gross-Up Payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph and preparation of any tax return or other filing that is affected by any matter addressed in this paragraph, and any audit, litigation or other proceeding that is affected by any matter addressed in this Section 5.3 and an amount equal to the Excise tax on such amounts at Executive’s Tax imposed Rate. For the purposes of the foregoing, “Tax Rate” means Executive’s effective tax rate based upon the Payments. Company combined federal and Executive shall make an initial determination as state and local income, earnings, Medicare and any other tax rates applicable to whether a Gross-up Payment is required Executive, all at the highest marginal rate of taxation in the country and state of Executive’s residence on the amount date of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service whichdetermination, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days net of the receipt reduction in federal income taxes which could be obtained by deduction of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear state and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executivelocal taxes.”

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in (i) In the event that any payment payments or distribution by Company benefits made or provided to or for the benefit of Executive in connection with this Agreement, or Executive, whether paid ’s employment with Company or payable or distributed or distributable pursuant the termination thereof (the “Payments”) are determined to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or and penalties imposed with respect to such taxes), ) including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is required and made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. The determination of whether the Payments are subject to the Excise Tax and, if so, the amount of any such the Gross-up Up Payment. , shall be made by a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of Company or any of its affiliates; provided, however, that if the accounting firm has determined that Section 4999 does not apply, and the Internal Revenue Service claims that Section 4999 applies to the Payments (or any portion thereof), then Section 4.6(ii) shall be applicable. (ii) Executive shall notify Company in writing of any claim by the Internal Revenue Service whichthat, if successful, would require the payment by Company to make of a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable but no later than ten (or a Gross-up Payment 10) business days after Executive is informed in excess writing of that, if any, initially determined by such claim and shall apprise Company and Executive) within 10 days of the receipt nature of such claimclaim and the date on which such claim is requested to be paid. Company Executive shall notify Executive in writing at least 10 days not pay such claim prior to the due expiration of the thirty (30) day period following the date on which he gives such notice to Company (or such shorter period ending on the date that any payment of any response required taxes with respect to such claim if it plans to contest the claimis due). If Company decides notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (A) give Company any information reasonably requested by Company relating to such claim, (B) take such action in connection with contesting such claim as Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Company, (C) cooperate with Company in good faith in order effectively to contest such claim, (D) permit Company to participate in any proceedings relating to such claim, and provided, however, that Company shall bear and pay directly all costs and expenses (including additional interest, penalties, accountant’s and legal fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection, Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and commence a proceeding to obtain a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Company shall determine; provided, however, that if Company directs Executive to pay such claim and seek a refund, Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iii) If, after the receipt by Executive of an amount advanced by Company pursuant to the foregoing, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements of the foregoing) promptly pay to Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to the previous subsection, a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (iv) Notwithstanding the foregoing, Company may use reasonable tax planning options with respect to Executive’s outstanding equity awards, if any, to mitigate the effects of the Excise Tax and Executive agrees to cooperate fully with Company in such actionusing all available tax planning options with respect to Executive’s equity awards to mitigate the effects of the Excise Tax; provided, however, Company shall ensure that Executive will receive additional equity awards and/or cash consideration that is at least equal to the reduction, if any, in the value (on an after-tax basis) of Executive’s equity awards as a result of Company’s implementation of such tax planning options; provided further, however, that Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with using such action tax planning options and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion use of such claim, if any, which it has not previously paid to Executivetax planning options.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment payment, benefit or distribution by Company to or for the benefit of Executivethe Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”"), Company shall pay to Executive the Employee an additional payment (a “"Gross-up Payment”") in an amount such that after payment by Executive the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive the Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive the Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive The Employee shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executivethe Employee) within 10 five days of the receipt of such claim. Company shall notify Executive the Employee in writing at least 10 ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive the Employee shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive the Employee harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s 's action. If, as a result of Company’s 's action with respect to a claim, Executive the Employee receives a refund of any amount paid by Company with respect to such claim, Executive the Employee shall promptly pay such refund to Company. If Company fails to timely notify Executive the Employee whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the Employee the portion of such claim, if any, which it has not previously paid to Executivethe Employee.

Additional Payments by Company. (a) Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment, and any Gross-up Payment so determined shall be paid to Executive as a lump-sum payment on the date the related Payment is made. Unless withheld and remitted by the Company, Executive shall timely remit any required Excise Tax payments to the Internal Revenue Service. (b) Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. (c) Any Gross-up Payment, reimbursement, indemnification or in-kind provision of expenses under clause (b) shall be made by Company to Executive promptly after incurrence thereof by Executive but in no event later than the end of the calendar year next following the calendar year in which Executive remits the related taxes that are the subject of the audit or litigation to the Internal Revenue Service (or, if no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed, settled or otherwise resolved) provided, that Executive must provide reasonable documentation to Company to substantiate taxes paid and expenses incurred. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event if it is determined that any payment or distribution compensation payable by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable Xxxxxx pursuant to the terms of this Agreement Agreement, including, without limitation, any Bonus Option or otherwise Bonus Shares, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amendedamended (the "Code") by reason of being "contingent on a change of ownership or control" of the Company, within the meaning of Section 280G of the Code or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are being hereinafter collectively referred to as the “"Excise Tax”"), Company shall pay then Xxxxxx will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive Xxxxxx of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive Xxxxxx retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. Company . (ii) All determinations required to be made under this Section 4.5, including whether an Excise Tax is payable by Xxxxxx and Executive shall make an initial determination as to the amount of such Excise Tax and whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment, will be made by Company's independent auditors. If the independent auditors determine that any Excise Tax is payable by Xxxxxx, the Company shall pay to Xxxxxx (on or before the date on which the Company is required to withhold such Excise Taxes) the required Gross-Up Payment. Executive shall notify Company in writing of any claim Any determination by the Internal Revenue Service which, if successful, would require Company independent auditors as to make whether a Gross-up Up Payment (or a is required and the amount of such Gross-up Up Payment in excess of that, if any, initially determined by will be binding upon Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to ExecutiveXxxxxx.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”"), Company shall pay to Executive an additional payment (a “"Gross-up Payment”") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 ten days of the receipt of such claim. Company shall notify Executive in writing at least 10 ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s 's action. If, as a result of Company’s 's action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. Notwithstanding anything (a) Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event if it is determined that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amendedamended (the "Code") by reason of being "contingent on a change of ownership or control" of the Company, within the meaning of Section 280G of the Code or to any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (such excise taxtax or taxes, together with any such interest or and penalties, are being hereinafter collectively referred to as the “"Excise Tax”"), Company shall pay then Executive will be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. Company . (b) All determinations required to be made under this paragraph 6.7, including whether an Excise Tax is payable by Executive and Executive shall make an initial determination as to the amount of such Excise Tax and whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment, will be made by Company's independent auditors. If the independent auditors determine that any Excise Tax is payable by Executive, the Company shall pay to the Executive (on or before the date on which the Company is required to withhold such Excise Taxes) the required Gross-Up Payment. Executive shall notify Company in writing of any claim Any determination by the Internal Revenue Service which, if successful, would require Company independent auditors as to make whether a Gross-up Up Payment (or a is required and the amount of such Gross-up Up Payment in excess of that, if any, initially determined by will be binding upon Company and Executive) within 10 days of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by Company amount required to or for the benefit of Executive, whether be paid or payable or distributed or distributable to the Executive pursuant to the terms of this Agreement or otherwise (shall constitute a “Payment”), would be subject to parachute payment within the excise tax imposed by meaning of Section 4999 28OG of the Internal Revenue Code of 1986, as amendedamended (the "Code"), and the aggregate of such parachute payments and any other amounts otherwise required to be paid or distributed to the Executive by the Company shall cause the Executive to be subject to the excise tax on excess parachute payments under Section 4999 of the Code (the "Excise Tax"), or any interest successor or penalties with respect to such excise tax (such excise taxsimilar provision thereof, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to the Executive an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount the Executive shall receive after the payment of any Excise Tax, shall equal the amount which he would have received if the Excise Tax had not been imposed. The Gross-Up Payment shall be the sum of the following: (a) The rate of the Excise Tax multiplied by Executive the amount of all taxes the excess parachute payments; (including any interest b) Any federal income tax, social security tax, unemployment tax or penalties imposed with respect to such taxes), including any Excise Tax imposed on any upon the Executive as a result of the Gross-up Payment, Up Payment required to be made under this ARTICLE 14; and (c) Any state income or other tax imposed upon the Executive retains an as a result of the Gross-Up Payment required to be made under this ARTICLE 14. For purposes of determining the amount of the Gross-up Payment equal Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation for individuals in the calendar year in which the Excise Tax imposed upon is required to be paid. In addition, the Payments. Company and Executive shall make an initial determination as be deemed to whether pay state income taxes at a rate determined in accordance with the following formula: ( 1 - (highest marginal rate of federal income taxation for individuals)) x (highest marginal rate of North Carolina income taxes for individuals in the calendar year in which the Excise Tax is required to be paid). In the event the Executive is subject to the provisions of Section 68 of the Code, the combined federal and state income tax rate determined above shall be adjusted to reflect any loss in the federal deduction for state income taxes on the Gross-up Payment is required and the amount of any such Up Payment. The Gross-up Payment. Up Payment shall be made not later than the fifth (5th) day, or as soon thereafter as the Company deems practicable, following the date the Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company becomes subject to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days payment of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such actionExcise Tax; provided, however, that if the amount of such payment cannot be finally determined on or before such day, the Company shall bear pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay directly the remainder of such payment (together with interest at the rate provided under Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but no later than the thirtieth (30th) day after the date the Executive becomes subject to the payment of the Excise Tax. In the event the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive 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 (plus the portion of the Gross-Up Payment attributable to the Excise Tax, federal and state 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 or indirectly all costs and expenses state 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 the Gross-Up Payment is made, (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund by reason of any payment the existence or amount paid by of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive excess) at the portion time that the amount of such claim, if any, which it has not previously paid to Executiveexcess is finally determined.

Additional Payments by Company. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by Company amount required to or for the benefit of Executive, whether be paid or payable or distributed or distributable to the Executive pursuant to the terms of this Agreement or otherwise (shall constitute a “Payment”), would be subject to parachute payment within the excise tax imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amendedamended (the "Code"), and the aggregate of such parachute payments and any other amounts otherwise required to be paid or distributed to the Executive by the Company shall cause the Executive to be subject to the excise tax on excess parachute payments under Section 4999 of the Code (the "Excise Tax"), or any interest successor or penalties with respect to such excise tax (such excise taxsimilar provision thereof, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to the Executive an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount the Executive shall receive after the payment of any Excise Tax, shall equal the amount which he would have received if the Excise Tax had not been imposed. The Gross-Up Payment shall be the sum of the following: (a) The rate of the Excise Tax multiplied by Executive the amount of all taxes the excess parachute payments; (including any interest b) Any federal income tax, social security tax, unemployment tax or penalties imposed with respect to such taxes), including any Excise Tax imposed on any upon the Executive as a result of the Gross-up Payment, Up Payment required to be made under this ARTICLE 14; and (c) Any state income or other tax imposed upon the Executive retains an as a result of the Gross-Up Payment required to be made under this ARTICLE 14. For purposes of determining the amount of the Gross-up Payment equal Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation for individuals in the calendar year in which the Excise Tax imposed upon is required to be paid. In addition, the Payments. Company and Executive shall make an initial determination as be deemed to whether pay state income taxes at a rate determined in accordance with the following formula: ( 1 - (highest marginal rate of federal income taxation for individuals)) x (highest marginal rate of Virginia income taxes for individuals in the calendar year in which the Excise Tax is required to be paid). In the event the Executive is subject to the provisions of Section 68 of the Code, the combined federal and state income tax rate determined above shall be adjusted to reflect any loss in the federal deduction for state income taxes on the Gross-up Payment is required and the amount of any such Up Payment. -12- -40- The Gross-up Payment. Up Payment shall be made not later than the fifth (5th) day, or as soon thereafter as the Company deems practicable, following the date the Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company becomes subject to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within 10 days payment of the receipt of such claim. Company shall notify Executive in writing at least 10 days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such actionExcise Tax; provided, however, that if the amount of such payment cannot be finally determined on or before such day, the Company shall bear pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay directly the remainder of such payment (together with interest at the rate provided under Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but no later than the thirtieth (30th) day after the date the Executive becomes subject to the payment of the Excise Tax. In the event the amount of the estimated payment exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive 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 (plus the portion of the Gross-Up Payment attributable to the Excise Tax, federal and state 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 or indirectly all costs and expenses state 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 the Gross-Up Payment is made, (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund by reason of any payment the existence or amount paid by of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive excess) at the portion time that the amount of such claim, if any, which it has not previously paid to Executiveexcess is finally determined.