Common use of Certain Additional Payment by the Company Clause in Contracts

Certain Additional Payment by the Company. (i) Anything in this Agreement to the contrary notwithstanding, in the event that any payment or distribution by the Company or any member of the Company Group to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option, restricted stock agreement or otherwise, but determined without regard to any additional payments required under this Section 8(g)) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Up Payment, the Executive retains an amount of the Gross Up Payment equal to the Excise Tax imposed upon the Payment. (ii) Subject to the provisions of Paragraph 8(g)(iii), all determinations required to be made under this Section 8(g), including whether and when a Gross Up Payment is required and the amount of such Gross Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized registered public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors and reasonably acceptable to the Executive (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt by the Accounting Firm of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v), any Gross Up Payment, as determined pursuant to this Section 8(g), shall be paid by the Company to the Executive within ten business days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii) and the Executive thereafter is required to make a payment of an Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v), be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ fees. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v), advance the amount of such payment to the Executive, on an interest free basis, and shall indemnify and hold the Executive harmless, on an after tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Paragraph 8(g)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Up Payment required to be paid. (v) The obligations of this Section 8(g) shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Up Payment payable under this Section 8(g) shall be made by the end of the calendar year next following the calendar year in which the Executive remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the Executive’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group after an Event gives rise to a Payment described in Paragraph 8(g)(i), and if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Up Payment (including any advance referenced in Paragraph 8(g)(iii)) and any reimbursement of expenses payable under this Section 8(g) shall not be made before the date that is six months after the date of such separation from service.

Certain Additional Payment by the Company. (i) A. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that Section 6 does not apply and that any payment or distribution by the Company or any member of the Company Group Subsidiary to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option, restricted stock agreement or otherwise, but determined without regard to any additional payments required under this Section 8(g)5) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive Employee 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 Executive Employee shall be entitled to receive an additional payment (a “Gross Gross-Up Payment”) in an amount such that after payment by the Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Gross-Up Payment, the Executive Employee retains an amount of the Gross Gross-Up Payment equal to the Excise Tax imposed upon the Payment. (ii) B. Subject to the provisions of Paragraph 8(g)(iii5(C), all determinations required to be made under this Section 8(g)5, including whether and when a Gross Gross-Up Payment is required and the amount of such Gross Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized registered public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors and reasonably acceptable to the Executive Employee (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive Employee within 15 business days of the receipt by the Accounting Firm of notice from the Executive Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v5(E), any Gross Gross-Up Payment, as determined pursuant to this Section 8(g)5, shall be paid by the Company to the Executive Employee within ten business days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the ExecutiveEmployee. As result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii5(C) and the Executive Employee thereafter is required to make a payment of an Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v5(E), be promptly paid by the Company to or for the benefit of the ExecutiveEmployee. (iii) C. The Executive Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive Employee is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) 5 except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive Employee shall not pay such claim prior to the expiration of the thirty (30) -day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive Employee in writing prior to the expiration of such period that it desires to contest such claim, the Executive Employee shall: (Ai) give the Company any information reasonably requested by the Company relating to such claim, , (Bii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (Ciii) cooperate with the Company in good faith in order to effectively contest such claim, and (Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive Employee harmless, on an after after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ fees. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii5(C), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive Employee to pay the tax claimed and xxx sxx for a refund or contest the claim in any permissible manner, and the Executive Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive Employee to pay such claim and xxx sxx for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v5(E), advance the amount of such payment to the ExecutiveEmployee, on an interest interest-free basis, and shall indemnify and hold the Executive Employee harmless, on an after after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and the Executive Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) D. If, after the receipt by the Executive Employee of an amount advanced by the Company pursuant to Paragraph 8(g)(iii5(C), the Executive Employee becomes entitled to receive any refund with respect to such claim, the Executive Employee shall (subject to the Company’s complying with the requirements of Paragraph 8(g)(iii5(C)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive Employee of an amount advanced by the Company pursuant to Paragraph 8(g)(iii5(C), a determination is made that the Executive Employee shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Gross-Up Payment required to be paid. (v) E. The obligations of this Section 8(g) 5 shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Gross-Up Payment payable under this Section 8(g) 5 shall be made by the end of the calendar year next following the calendar year in which the Executive Employee remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) 5 of expenses incurred by Executive Employee due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the ExecutiveEmployee’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group Subsidiaries after an Event gives rise to a Payment described in Paragraph 8(g)(i5(A), and if the Executive Employee is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Gross-Up Payment (including any advance referenced in Paragraph 8(g)(iii5(C)) and any reimbursement of expenses payable under this Section 8(g) 5 shall not be made before the date that is six months after the date of such separation from service.

Certain Additional Payment by the Company. (i) A. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that Paragraph 5 does not apply and that any payment or distribution by the Company or any member of the Company Group Subsidiary to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option, restricted stock agreement or otherwise, but determined without regard to any additional payments required under this Section 8(g)Paragraph 4) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive Employee 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 Executive Employee shall be entitled to receive an additional payment (a “Gross "Gross-Up Payment”") in an amount such that after payment by the Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Gross-Up Payment, the Executive Employee retains an amount of the Gross Gross-Up Payment equal to the Excise Tax imposed upon the Payment. (ii) B. Subject to the provisions of Paragraph 8(g)(iii4(C), all determinations required to be made under this Section 8(g)Paragraph 4, including whether and when a Gross Gross-Up Payment is required and the amount of such Gross Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by KPMG Peat Marwick LLP ("KPMG") or such other nationally recognized registered certified public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors Employee and reasonably acceptable to the Executive Company if KPMG is unable to render such services (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive Employee within 15 business days of the receipt by the Accounting Firm of notice from the Executive Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v), any Gross Up Payment, as determined pursuant to this Section 8(g), shall be paid by the Company to the Executive within ten business days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii) and the Executive thereafter is required to make a payment of an Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v), be promptly paid by the Company to is serving as accountant or auditor for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ fees. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v), advance the amount of such payment to the Executive, on an interest free basis, and shall indemnify and hold the Executive harmless, on an after tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Paragraph 8(g)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Up Payment required to be paid. (v) The obligations of this Section 8(g) shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Up Payment payable under this Section 8(g) shall be made by the end of the calendar year next following the calendar year in which the Executive remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the Executive’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group after an Event gives rise to a Payment described in Paragraph 8(g)(i), and if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Up Payment (including any advance referenced in Paragraph 8(g)(iii)) and any reimbursement of expenses payable under this Section 8(g) shall not be made before the date that is six months after the date of such separation from service.person effecting

Certain Additional Payment by the Company. (ia) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company or any member of the Company Group to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this AgreementAgreement or any other plan, any stock option, restricted stock arrangement or agreement or otherwisewith the Company), but determined without regard to any additional payments required under this Section 8(g9 ("Payment")) (a “Payment”) , would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “Gross "Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Gross-Up Payment, the Executive retains an amount of the Gross Gross-Up Payment equal to the Excise Tax imposed upon the PaymentPayments. (iib) Subject to the provisions of Paragraph 8(g)(iii)paragraph (c) of this Section 9, all determinations required to be made under this Section 8(g)9, including whether and when a Gross Gross-Up Payment is required and the amount of such Gross Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such a nationally recognized registered certified public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors and reasonably acceptable to the Executive Company (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt by the Accounting Firm of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v), any Gross Any Gross-Up Payment, as determined pursuant to this Section 8(g)9, shall be paid by the Company to the Executive within ten business five (5) days of the receipt of the Accounting Firm’s 's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Gross-Up Payments which will not have been made by the Company should have been made (“"Underpayment”), ") consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii) and the Executive thereafter is required to make a payment of an any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v), shall be promptly paid by the Company to or for the benefit of the Executive. (iiic) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) -day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (Ai) give the Company any information reasonably requested by the Company relating to such claim, (Bii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim claims by an attorney reasonably selected by the Company, (Ciii) cooperate with the Company in good faith in order effectively to effectively contest such claim, and (Div) permit the Company to participate in any proceedings relating to such claim; providedPROVIDED, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after after-tax basis, for any Excise Tax or income tax (including interest and or penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ feesexpenses. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii)the paragraph (c) of Section 9, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx sue for a refund or contest the claim in any permissible manner, and the anx xhe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; providedPROVIDED, however, that if the Company directs the Executive to pay such claim and xxx sue for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v), shall advance the amount of such payment paymxxx to the Executive, on an interest interest-free basis, basis and shall indemnify and hold the Executive harmless, on an after after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided PROVIDED, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s 's control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, be any other issue raised by the Internal Revenue Service or any other taxing authority. (ivd) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii)paragraph (c) of this Section 9, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s 's complying with the requirements of Paragraph 8(g)(iii)paragraph (c) of this Section 9) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, If after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii)paragraph (c) of this Section 9, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of or refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Gross-Up Payment required to be paid. (v) The obligations of this Section 8(g) shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Up Payment payable under this Section 8(g) shall be made by the end of the calendar year next following the calendar year in which the Executive remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the Executive’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group after an Event gives rise to a Payment described in Paragraph 8(g)(i), and if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Up Payment (including any advance referenced in Paragraph 8(g)(iii)) and any reimbursement of expenses payable under this Section 8(g) shall not be made before the date that is six months after the date of such separation from service.

Certain Additional Payment by the Company. (ia) Anything in this Employment Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company or any member of the Company Group to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this AgreementEmployment Agreement or any other plan, any stock option, restricted stock arrangement or agreement or otherwisewith the Company), but determined without regard to any additional payments required under this Section 8(g9 ("Payment")) (a “Payment”) , would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “Gross "Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Gross-Up Payment, the Executive retains an amount of the Gross Gross-Up Payment equal to the Excise Tax imposed upon the PaymentPayments. (iib) Subject to the provisions of Paragraph 8(g)(iii)paragraph (c) of this Section 9, all determinations required to be made under this Section 8(g)9, including whether and when a Gross Gross-Up Payment is required and the amount of such Gross Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such a nationally recognized registered certified public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors and reasonably acceptable to the Executive Company (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 fifteen (15) business days of the receipt by the Accounting Firm of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v), any Gross Any Gross-Up Payment, as determined pursuant to this Section 8(g)9, shall be paid by the Company to the Executive within ten business five (5) days of the receipt of the Accounting Firm’s 's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Gross-Up Payments which will not have been made by the Company should have been made (“"Underpayment”), ") consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii) and the Executive thereafter is required to make a payment any challenge of an Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v), shall be promptly paid by the Company to or for the benefit of the Executive. (iiic) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which it he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (Ai) give the Company any information reasonably requested by the Company relating to such claim, (Bii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim claims by an attorney reasonably selected by the Company, (Ciii) cooperate with the Company in good faith in order effectively to effectively contest such claim, and (Div) permit the Company to participate in any proceedings relating to such claim; provided; (d) PROVIDED, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after after-tax basis, for any Excise Tax or income tax (including interest and or penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ feesexpenses. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii)the paragraph (c) of Section 9, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx sue for a refund or contest the claim in any permissible manner, and the anx xhe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; providedPROVIDED, however, that if the Company directs the Executive to pay such claim and xxx sue for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v), shall advance the amount of such payment paymxxx to the Executive, on an interest interest-free basis, basis and shall indemnify and hold the Executive harmless, on an after after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided PROVIDED, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s 's control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, be any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) . If, after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii)paragraph (c) of this Section 9, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s 's complying with the requirements of Paragraph 8(g)(iii)paragraph (c) of this Section 9) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, If after the receipt by the Executive of an amount advanced by the Company pursuant to Paragraph 8(g)(iii)paragraph (c) of this Section 9, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of or refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Gross-Up Payment required to be paid. (v) The obligations of this Section 8(g) shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Up Payment payable under this Section 8(g) shall be made by the end of the calendar year next following the calendar year in which the Executive remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the Executive’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group after an Event gives rise to a Payment described in Paragraph 8(g)(i), and if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Up Payment (including any advance referenced in Paragraph 8(g)(iii)) and any reimbursement of expenses payable under this Section 8(g) shall not be made before the date that is six months after the date of such separation from service.

Certain Additional Payment by the Company. (iA) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that Paragraph 5 does not apply and that any payment or distribution by the Company or any member of the Company Group Subsidiary to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option, restricted stock agreement or otherwise, but determined without regard to any additional payments required under this Section 8(g)Paragraph 4) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive Employee 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 Executive Employee shall be entitled to receive an additional payment (a “Gross "Gross-Up Payment”") in an amount such that after payment by the Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross Gross-Up Payment, the Executive Employee retains an amount of the Gross Gross-Up Payment equal to the Excise Tax imposed upon the Payment. (iiB) Subject to the provisions of Paragraph 8(g)(iii4(C), all determinations required to be made under this Section 8(g)Paragraph 4, including whether and when a Gross Gross-Up Payment is required and the amount of such Gross Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by KPMG Peat Marwick LLP ("KPMG") or such other nationally recognized registered certified public accounting firm (other than the accounting firm(s) then serving as the independent auditors for the Company and the person effecting the Event) as may be designated by the Company’s independent auditors Employee and reasonably acceptable to the Executive Company if KPMG is unable to render such services (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive Employee within 15 business days of the receipt by the Accounting Firm of notice from the Executive Employee that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the person effecting the Event, the Employee shall appoint another nationally recognized accounting firm reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Except as otherwise provided in Paragraph 8(g)(v), any Gross Any Gross-Up Payment, as determined pursuant to this Section 8(g)Paragraph 4, shall be paid by the Company to the Executive Employee within ten business days of the receipt of the Accounting Firm’s 's determination. If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with a written opinion that failure to report the Excise Tax on the Employee's applicable federal income tax return would not result in the imposition of the negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the ExecutiveEmployee. As result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross Gross-Up Payments which will not have been made by the Company should have been made (“"Underpayment”"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 8(g)(iii4(C) and the Executive Employee thereafter is required to make a payment of an Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment together with all penalties and interest related thereto shall, subject to the requirements of Paragraph 8(g)(v), shall be promptly paid by the Company to or for the benefit of the ExecutiveEmployee. (iiiC) The Executive Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive Employee is informed in writing of such claim (provided that any delay in so informing the Company within such ten business day period shall not affect the obligations of the Company under this Section 8(g) Paragraph 4 except to the extent that such delay materially and adversely affects the Company) and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive Employee shall not pay such claim prior to the expiration of the thirty (30) -day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive Employee in writing prior to the expiration of such period that it desires to contest such claim, the Executive Employee shall: (Ai) give the Company any information reasonably requested by the Company relating to such claim, (Bii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (Ciii) cooperate with the Company in good faith in order to effectively contest such claim, and (Div) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive Employee harmless, on an after after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses including reasonable attorneys’ ' fees. Without limitation on the foregoing provisions of this Paragraph 8(g)(iii4(C), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive Employee to pay the tax claimed and xxx sue for a refund or contest the claim in any permissible manner, and the Executive Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive Employee to pay such claim and sue xxx for a refund, the Company shall, subject to the requirements of Paragraph 8(g)(v), shall advance the amount of such payment to the ExecutiveEmployee, on an interest interest-free basis, and shall indemnify and hold the Executive Employee harmless, on an after after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s 's control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and the Executive Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (ivD) If, after the receipt by the Executive Employee of an amount advanced by the Company pursuant to Paragraph 8(g)(iii4(C), the Executive Employee becomes entitled to receive any refund with respect to such claim, the Executive Employee shall (subject to the Company’s 's complying with the requirements of Paragraph 8(g)(iii4(C)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive Employee of an amount advanced by the Company pursuant to Paragraph 8(g)(iii4(C), a determination is made that the Executive Employee shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross Gross-Up Payment required to be paid. (v) The obligations of this Section 8(g) shall survive the termination of this Agreement. Notwithstanding any provision above to the contrary, any Gross Up Payment payable under this Section 8(g) shall be made by the end of the calendar year next following the calendar year in which the Executive remits the taxes. Further, notwithstanding any provision above to the contrary, any right to reimbursement under this Section 8(g) of expenses incurred by Executive due to a tax audit or litigation addressing the existence or amount of a tax liability shall be made by the end of the calendar year following the calendar year in which the taxes that are the subject of the audit or litigation are remitted, or where as a result of the audit or litigation no taxes are remitted, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. If the Executive’s separation from service (within the meaning of Section 409A of the Code) with the Company and its Company Group after an Event gives rise to a Payment described in Paragraph 8(g)(i), and if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of such separation from service, then any Gross Up Payment (including any advance referenced in Paragraph 8(g)(iii)) and any reimbursement of expenses payable under this Section 8(g) shall not be made before the date that is six months after the date of such separation from service.