Common use of Additional Payments Clause in Contracts

Additional Payments. (i) Anything in this Agreement to the contrary notwithstanding, if it is determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest 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 the Company shall pay to Executive an additional payment (a “GROSS-UP PAYMENT”) in an amount equal to that required to result in Executive receiving, after application of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determinations, shall be made by a public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). 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 SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive shall be made no later than 30 days following such Excess Parachute Payment. (iii) 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 will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, 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. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contest.

Additional Payments. (i) Anything in this Agreement to If, for any taxable year, Executive shall be liable for the contrary notwithstanding, if it is determined that any payment, award, benefit or distribution (or any acceleration payment of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in control (an excise tax under Section 4999 and/or Section 409A or other change in ownershipsubstitute or similar tax assessment (the “Excise Tax”) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “EXCESS PARACHUTE PAYMENTSCode”), or including the corresponding provisions of any interest or penalties are incurred by Executive succeeding law, with respect to such excise tax (such excise taxany payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, together with including but not limited to this Section 12 or under any such interest and penaltiesbenefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, are hereinafter collectively referred to as the “EXCISE TAX”)then, then notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional payment amount (a the “GROSSGross-UP PAYMENTUp Payment”) in an such that the net amount equal to that required to result in Executive receivingretained by the Executive, after application deduction of the Excise TaxTax imposed on all such payments and benefits and of the federal, a net amount that would have been received hereunder had the state and local income tax and Excise Tax not applied. (ii) Subject imposed upon payments provided for in this Section 12, shall be equal to clause (i), all determinations required the payments and benefits due to be made the Executive hereunder and the payments and/or benefits due to the Executive under this Section, including whether and when a any benefit plan of the Company. Each Gross-Up Payment is requiredshall be made to Executive or as provided in Section 16 hereof, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. (i) Anything in this Agreement to the contrary notwithstanding, if If it is determined that any paymentamount, award, right or benefit paid or distribution payable (or any acceleration of any payment, award, benefit otherwise provided or distributionto be provided) to Executive by the Company or any entity of its affiliates under this Agreement or any other plan, program or arrangement under which effectuates Executive participates or is a change in control party (or other change in ownership) collectively, the "PAYMENTS"), would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended from time to or for time (the benefit of Executive would be "CODE"), subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (“EXCESS PARACHUTE PAYMENTS”the "EXCISE TAX"), or then Executive shall be entitled to receive an additional payment from the Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by Executive of all taxes (including any interest or penalties are incurred by Executive imposed with respect to such excise tax taxes), including any income and employment taxes (such excise tax, together with and any such interest and penalties, are hereinafter collectively referred to as penalties imposed with respect thereto) and Excise Tax imposed upon the “EXCISE TAX”Gross-Up Payment (and any interest and penalties imposed with respect thereto), then the Company shall pay to Executive an additional payment (a “GROSS-UP PAYMENT”) in retains an amount of the Gross-Up Payment equal to that required to result in Executive receiving, after application of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (iiincluding any interest and penalties imposed with respect thereto) Subject to clause (i), all imposed upon the Payments. All determinations required to be made under this SectionSECTION 6, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be used utilized in arriving at such determinationsdetermination, shall be made by a public an independent, nationally recognized accounting firm that is selected by mutually acceptable to the Board Company and Executive (the “ACCOUNTING FIRM”) which "AUDITOR"). The Auditor shall provide detailed supporting calculations to both to the Company and Executive within 15 fifteen (15) business days of the receipt of notice from Executive or the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”)Company. All fees and expenses of the Accounting Firm Auditor shall be borne solely paid by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunderCompany. The Any Gross-Up Payment under Payment, as determined pursuant to this SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive 6, shall be made no later than 30 days following such Excess Parachute Payment. (iii) 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 will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to Executive within five (5) days of the receipt of the Auditor's determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Auditor's initial determination, the Internal Revenue Service (or for other applicable taxing authority) determines that an additional Excise Tax is due with respect to the benefit of Executive. If Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment exceeds based upon the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been determinations made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, 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. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the other applicable taxing authority; provided that ) after taking into account any reimbursement required under this SECTION 3.2(cadditional interest and penalties (the "RECALCULATED AMOUNT") of expenses incurred by and the Company shall pay to Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result excess of the audit or contest no taxes are remitted, Recalculated Amount over the date on which the audit is completed or there is a final and nonappealable settlement or other resolution Gross-Up Payment initially paid to Executive within five (5) days of the contestreceipt of the Auditor's recalculation of the Gross-Up Payment.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. (i) Anything in this Agreement to If, for any taxable year, Executive shall be liable for the contrary notwithstanding, if it is determined that any payment, award, benefit or distribution (or any acceleration payment of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in control (an excise tax under Section 4999 or other change in ownershipsubstitute or similar tax assessment (the “Excise Tax”) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “EXCESS PARACHUTE PAYMENTSCode”), or including the corresponding provisions of any interest or penalties are incurred by Executive succeeding law, with respect to such excise tax (such excise taxany payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, together with including but not limited to this Section 12 or under any such interest and penaltiesbenefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, are hereinafter collectively referred to as the “EXCISE TAX”)then, then notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional payment amount (a the “GROSSGross-UP PAYMENTUp Payment”) in an such that the net amount equal to that required to result in Executive receivingretained by the Executive, after application deduction of the Excise TaxTax imposed on all such payments and benefits and of the federal, a net amount that would have been received hereunder had the state and local income tax and Excise Tax not applied. (ii) Subject imposed upon payments provided for in this Section 12, shall be equal to clause (i), all determinations required the payments and benefits due to be made the Executive hereunder and the payments and/or benefits due to the Executive under this Section, including whether and when a any benefit plan of the Company. Each Gross-Up Payment is requiredshall be made to Executive or as provided in Section 16 hereof, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise TaxControl. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contest.13

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 4.9 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with then, notwithstanding any such interest and penaltiesother provisions of this Agreement, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to the Executive an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 4.9, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is requiredshall be made by domestic cashier's or treasurer's check, certified check or wire transfer, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive -------------------- shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 10 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with then, notwithstanding any such interest and penaltiesother provisions of this Agreement, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to the Executive an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 10, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is requiredshall be made by domestic cashier's or treasurer's check, certified check or wire transfer, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. (i) Anything in this Agreement to If, for any taxable year, Executive shall be liable for the contrary notwithstanding, if it is determined that any payment, award, benefit or distribution (or any acceleration payment of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in control (an excise tax under Section 4999 or other change in ownershipsubstitute or similar tax assessment (the “Excise Tax”) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “EXCESS PARACHUTE PAYMENTSCode”), or including the corresponding provisions of any interest or penalties are incurred by Executive succeeding law, with respect to such excise tax (such excise taxany payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, together with including but not limited to this Section 12 or under any such interest and penaltiesbenefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, are hereinafter collectively referred to as the “EXCISE TAX”)then, then notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional payment amount (a the “GROSSGross-UP PAYMENTUp Payment”) in an such that the net amount equal to that required to result in Executive receivingretained by the Executive, after application deduction of the Excise TaxTax imposed on all such payments and benefits and of the federal, a net amount that would have been received hereunder had the state and local income tax and Excise Tax not applied. (ii) Subject imposed upon payments provided for in this Section 12, shall be equal to clause (i), all determinations required the payments and benefits due to be made the Executive hereunder and the payments and/or benefits due to the Executive under this Section, including whether and when a any benefit plan of the Company. Each Gross-Up Payment is requiredshall be made to Executive or as provided in Section 16 hereof, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. (i) Anything in this Agreement to the contrary notwithstanding, if If it is determined that any paymentamount, award, right or benefit paid or distribution payable (or any acceleration of any payment, award, benefit otherwise provided or distributionto be provided) to Executive by the Company or any entity of its affiliates under this Agreement or any other plan, program or arrangement under which effectuates Executive participates or is a change in control party (or other change in ownership) collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended from time to or for time (the benefit of Executive would be “Code”), subject to the excise tax imposed by Section 4999 of the Code Code, as amended from time to time (“EXCESS PARACHUTE PAYMENTS”), or any interest 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 TAXExcise Tax”), then the Company Executive shall pay be entitled to Executive receive an additional payment from the Company (a “GROSSGross-UP PAYMENTUp 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 income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment (and any interest and penalties imposed with respect thereto), Executive retains an amount of the Gross-Up Payment equal to that required to result in Executive receiving, after application of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (iiincluding any interest and penalties imposed with respect thereto) Subject to clause (i), all imposed upon the Payments. All determinations required to be made under this SectionSection 6, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be used utilized in arriving at such determinationsdetermination, shall be made by a public an independent, nationally recognized accounting firm that is selected by mutually acceptable to the Board Company and Executive (the “ACCOUNTING FIRMAuditor”) which ). The Auditor shall provide detailed supporting calculations to both to the Company and Executive within 15 fifteen (15) business days of the receipt of notice from Executive or the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”)Company. All fees and expenses of the Accounting Firm Auditor shall be borne solely paid by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunderCompany. The Any Gross-Up Payment under SECTION 3.2(c) with respect Payment, as determined pursuant to any Excess Parachute Payments made to Executive this Section 6, shall be made no later than 30 days following such Excess Parachute Payment. (iii) 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 will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or for other applicable taxing authority) determines that an additional Excise Tax is due with respect to the benefit of Executive. If Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment exceeds based upon the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been determinations made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, 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. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the other applicable taxing authority; provided that ) after taking into account any reimbursement required under this SECTION 3.2(cadditional interest and penalties (the “Recalculated Amount”) of expenses incurred by and the Company shall pay to Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result excess of the audit or contest no taxes are remitted, Recalculated Amount over the date on which the audit is completed or there is a final and nonappealable settlement or other resolution Gross-Up Payment initially paid to Executive within five (5) days of the contestreceipt of the Auditor’s recalculation of the Gross-Up Payment.

Additional Payments. If, for any taxable year, Executive shall be ------------------- liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this/her Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. (i) Anything in this Agreement to If, for any taxable year, Executive shall be liable for the contrary notwithstanding, if it is determined that any payment, award, benefit or distribution (or any acceleration payment of any payment, award, benefit or distribution) by the Company or any entity which effectuates a change in control (an excise tax under Section 4999 or other change in ownershipsubstitute or similar tax assessment (the “Excise Tax”) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “EXCESS PARACHUTE PAYMENTSCode”), or including the corresponding provisions of any interest or penalties are incurred by Executive succeeding law, with respect to such excise tax (such excise taxany payments under this Section 10 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with then, notwithstanding any such interest and penaltiesother provisions of this Agreement, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to the Executive an additional payment amount (a the “GROSSGross-UP PAYMENTUp Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 10, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is requiredshall be made by domestic cashier’s or treasurer’s check, certified check or wire transfer, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or 101 benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments under this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, together with any such interest and penaltiesthen, are hereinafter collectively referred to as the “EXCISE TAX”), then the Company shall pay to Executive the Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on such payments and benefits and any federal, state and local income tax and Excise Tax upon payments provided for in an amount this Section 12, shall be equal to that required the payments due to result in the Executive receiving, after application hereunder and the payments and/or 118 benefits due to the Executive under any benefit plan of the Excise Tax, a net amount that would have been received hereunder had the Excise Tax not applied. (ii) Subject to clause (i), all determinations required to be made under this Section, including whether and when a Company. Each Gross-Up Payment is required, shall be made in good funds upon the amount later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 or other substitute or similar tax assessment (ithe "Excise Tax") Anything in this Agreement to of the contrary notwithstandingInternal Revenue Code of 1986, if it is determined that any paymentas amended (the "Code"), award, benefit or distribution (or any acceleration including the corresponding provisions of any paymentsucceeding law, award, benefit or distribution) by the Company or any entity which effectuates a change in control (or other change in ownership) to or for the benefit of Executive would be subject to the excise tax imposed by Section 4999 of the Code (“EXCESS PARACHUTE PAYMENTS”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise taxany payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, together with including but not limited to this Section 12 or under any such interest and penaltiesbenefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, are hereinafter collectively referred to as the “EXCISE TAX”)then, then notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional payment amount (a “GROSSthe "Gross-UP PAYMENT”Up Payment") in an such that the net amount equal to that required to result in Executive receivingretained by the Executive, after application deduction of the Excise TaxTax imposed on all such payments and benefits and of the federal, a net amount that would have been received hereunder had the state and local income tax and Excise Tax not applied. (ii) Subject imposed upon payments provided for in this Section 12, shall be equal to clause (i), all determinations required the payments and benefits due to be made the Executive hereunder and the payments and/or benefits due to the Executive under this Section, including whether and when a any benefit plan of the Company. Each Gross-Up Payment is requiredshall be made to Executive or as provided in Section 16 hereof, upon the amount later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment and the assumptions to be used in arriving at such determinations, under this section shall be made computed by a nationally recognized certified public accounting firm that is selected by the Board (the “ACCOUNTING FIRM”) which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from the Company or Executive that there has been a Excess Parachute Payment, or such earlier time as is requested by the Company or Executive (collectively, the “DETERMINATION”). All fees and expenses of the Accounting Firm shall be borne solely designated jointly by the Company and the Company shall enter into any agreement requested Executive. The cost of such services by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under SECTION 3.2(c) with respect to any Excess Parachute Payments made to Executive accounting firm shall be made no later than 30 days following such Excess Parachute Payment. (iii) As a result of paid by the uncertainty in Company. If the application of Section 4999 of Company and the Code at Executive are unable to designate jointly the time of accounting firm, then the Determination, it is possible that Gross-Up Payments which will not have been made firm shall be the accounting firm used by the Company should have been made (“UNDERPAYMENT”) or Gross-Up Payments will be made by the Company which should not have been made (“OVERPAYMENT”), consistent with the calculations required to be made hereunder. If 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 the Code) shall be promptly paid by the Company to or for the benefit of Executive. If 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 any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive to or for the benefit of the Company. Executive shall cooperate, immediately prior to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company Change in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. The Company shall in any event pay any Underpayment due to Executive no later than 15 days after the earlier of (A) the Company’s receipt of Executive’s notice of the amount of related taxes to be paid, or (B) Executive’s remittance of the related taxes to the applicable taxing authority; provided that any reimbursement required under this SECTION 3.2(c) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be paid no later than 15 days after the earlier of (X) Executive’s presentation of a statement of any such expense, or (Y) the taxes that are the subject of such contest are remitted to the applicable taxing authority, or where as a result of the audit or contest no taxes are remitted, the date on which the audit is completed or there is a final and nonappealable settlement or other resolution of the contestControl.