Common use of Certain Additional Payments by Employer Clause in Contracts

Certain Additional Payments by Employer. (a) In the event that Section 280G of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any excise tax (“Excise Tax”) that may be imposed by Section 4999 of the Code becomes payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, Employer will pay to Executive an additional amount (“Gross-up Payment”) at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s notice as the amount subject to the Excise Tax on Executive’s Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received.

Certain Additional Payments by Employer. (a) In the event that Section 280G of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any excise tax (“"Excise Tax”") that may be imposed by Section 4999 of the Code becomes become payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, Employer will pay to Executive an additional amount (“"Gross-up Payment”") at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s 's adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s 's notice as the amount subject to the Excise Tax on Executive’s 's Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s 's behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received.

Certain Additional Payments by Employer. Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to Officer or for Officer's benefit (awhether paid or payable or distributed or distributable) In pursuant to the event that terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (the "Payments") would be subject to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in the ownership or control" of Employer, within the meaning of Section 280G of the Code is determined or to apply any similar tax imposed by state or local law, or any interest or penalties with respect to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any such excise tax (“such tax or taxes, together with any such interest or penalties, are collectively referred to as the "Excise Tax”) that may "), then Officer shall be imposed by Section 4999 of the Code becomes payable by Executive because of any of the payments made entitled to Executive under this Agreement or otherwise, receive from Employer will pay to Executive an additional amount payment (“the "Gross-up Up Payment”") at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, that the net amount of the Payments and the Gross-Up Payment retained by Officer after payment by Executive the calculation and deduction of all taxes Excise Taxes (includingincluding any interest or penalties imposed with respect to such taxes) on the payment and all federal, without limitationstate and local income tax, all income and employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 6, and treating as a taking into account any lost or reduced tax the disallowance of any deduction of Executive by virtue of the inclusion deductions on account of the Gross-up Up Payment, shall be equal to the Payments; (a) All determinations required to be made under this Section 6, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in Executive’s adjusted gross incomearriving at such determinations shall be made by the Accountants (as defined below) which shall provide Officer and interest and penalties Employer with detailed supporting calculations with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination Up Payment within fifteen (15) business days of the amount receipt of payments under this Agreement subject to notice from Officer or Employer that Officer has received or will receive a Payment. For purposes of making the Excise Tax (which determination shall determinations and calculations required herein, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code, provided that the Accountant's determinations must be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for on the Excise Tax paidbasis of "substantial authority" (within the meaning of Section 6662 of the Code). Executive shall report For the amount indicated in Employer’s notice as the amount subject to the Excise Tax on Executive’s Federal income tax return. (b) If, for any reasonpurposes of this Section 6, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer "Accountants" shall mean Employer's independent certified public accountants serving immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is dueChange in Control. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant Accountants are also serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Officer shall appoint another nationally recognized public accounting firm to this Section 13 exceeds make the amount determined determinations required hereunder (which accounting firm shall then be referred to have been due, as the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive Accountants hereunder). All fees and expenses of the refund from the Internal Revenue Service together with any interest receivedAccountants shall be borne solely by Employer.

Certain Additional Payments by Employer. (a) In the event it shall be determined that Section 280G of the Code is determined to apply to the payments to be made any payment or distribution by Employer to Executive under or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or other compensation or benefit programsotherwise, and in but determined without regard to any additional payments required under this Section 27) (a "Payment") would be subject to the event any excise tax (“Excise Tax”) that may be imposed by Section 4999 of the Internal Revenue Code becomes payable of 1986, as amended (the "Code") or any interest or penalties are incurred by Executive because of Employee with respect to such excise tax (such excise tax, together with any of such interest and penalties, are hereinafter collectively referred to as the payments made "Excise Tax"), then Employee shall be entitled to Executive under this Agreement or otherwise, Employer will pay to Executive receive an additional amount payment (“a "Gross-up Up Payment”") at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, that after payment by Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, all any income taxes (and employment tax any interest and penalties imposed with respect thereto) and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Up Payment, Executive Employee retains an amount of the Gross-Up Payment equal to the Excise Tax. Employer shall notify Executive of its determination of Tax imposed upon the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s notice as the amount subject to the Excise Tax on Executive’s Federal income tax returnPayments. (b) IfSubject to the provisions of Section 27(c), all determinations required to be made under this Section 27, 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 KPMG LLP, or such other certified public accounting firm reasonably acceptable to Employer as may be designated by Employee (the "Accounting Firm") which shall provide detailed supporting calculations both to Employer and Employee within 15 business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by Employer. All fees and expenses of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment, as determined pursuant to this Section 27, shall be paid by Employer to Employee within five days of the later of (i) the due date for the payment of any reasonExcise Tax, and (ii) the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon Employer and Employee. 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-Up Payments which will not have been made by Employer should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that Employer exhausts its remedies pursuant to Section 27(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employee shall notify Employer in writing of any claim by the Internal Revenue Service or any other taxing authority proposes an adjustment ("IRS") that, if successful, would require the payment by Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the amount expiration of Excise Tax due the 30-day period following the date on which it gives such notice to Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall: (i) give Employer any payments or information reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to any additional amounts received such claim by Executive pursuant to this Agreementan attorney reasonably selected by Employer, Executive will notify (iii) cooperate with Employer immediately of such proposed adjustment and shall give Employer the right in good faith in order effectively to contest such proposed adjustment on Executive’s behalfclaim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated and expenses (including additional interest and penalties) incurred in connection with any contest, regardless of outcome, such contest and shall have complete control over such contest as it relates to the Excise Taxindemnify and hold Employee harmless, including whether such contest shall be by way of nonon an after-payment of the Excise Taxtax basis, payment of the for any Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive income tax (iincluding interest and penalties with respect thereto) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive imposed as a result of such representation and payment of costs and expenses. Without limitation on the outcome foregoing provisions of this Section 27(c), Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any contestand all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any penalties or interest thereonpermissible manner, and 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 Employer shall determine; provided, however, that if Employer directs Employee to pay such claim and xxx for a refund, Employer shall advance the amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (iiincluding 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 Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Employer's control of the contest shall be limited to issues with respect to which a Gross-up Up Payment computed in would be payable hereunder and Employee shall be entitled to settle or contest, as the same manner and subject to case may be, any other issue raised by the same adjustments as IRS or any other Gross-up Payments previously described. Payment taxing authority. (d) If, after the receipt by Employer Employee of an amount equal advanced by Employer pursuant to Section 27(c), Employee becomes entitled to receive any refund with respect to such claim, Employee shall (subject to Employer's complying with the Excise Tax and Gross-up Payment shall be made requirements of Section 27(c)) promptly pay to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that Employer the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the such refund from the Internal Revenue Service (together with any interest receivedpaid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by Employer pursuant to Section 27(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 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." 6. Except as set forth herein, the Agreement shall remain in full force and effect.

Certain Additional Payments by Employer. (a) In the event that Section 280G of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any excise tax (“"Excise Tax”") that may be imposed by Section 4999 of the Code becomes payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, Employer will pay to Executive an additional amount (“"Gross-up Payment”") at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s 's adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s 's notice as the amount subject to the Excise Tax on Executive’s 's Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s 's behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received.

Certain Additional Payments by Employer. (a) In the event that Section 280G 28OG of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event of any excise tax (“"Excise Tax”") that may be imposed by Section 4999 of the Code becomes become payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, the Employer will pay to Executive an additional amount (“"Gross-up Payment”') at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s 's adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s 's notice as the amount subject to the Excise Tax on Executive’s 's Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such such (a) proposed adjustment on Executive’s 's behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received. 2. Effective February 1, 1997, a new section 17 is added to read as follows:

Certain Additional Payments by Employer. (a) In the event that Section 280G of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any excise tax (“"Excise Tax”") that may be imposed by Section 4999 of the Code becomes become payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, Employer will pay to Executive an additional amount (“"Gross-up Payment”") at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s 's adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s 's notice as the amount subject to the Excise Tax on Executive’s 's Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s 's behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to t the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received.

Certain Additional Payments by Employer. (a) In the event that Section 280G of the Code is determined to apply to the payments to be made by Employer to Executive under this Agreement or other compensation or benefit programs, and in the event any excise tax (“Excise Tax”) that may be imposed by Section 4999 of the Code becomes become payable by Executive because of any of the payments made to Executive under this Agreement or otherwise, Employer will pay to Executive an additional amount (“Gross-up Payment”) at least 60 days prior to the due date for payment of the Excise Tax. The Gross-up Payment shall be in an amount such that, after payment by Executive of all taxes (including, without limitation, all income and employment tax and Excise Tax and treating as a tax the disallowance of any deduction of Executive by virtue of the inclusion of the Gross-up Payment in Executive’s adjusted gross income) and interest and penalties with respect to such taxes imposed upon the Gross-up Payment, Executive retains an amount equal to the Excise Tax. Employer shall notify Executive of its determination of the amount of payments under this Agreement subject to the Excise Tax (which determination shall be made by an accounting firm selected by Employer) and shall provide Executive with a receipt for the Excise Tax paid. Executive shall report the amount indicated in Employer’s notice as the amount subject to the Excise Tax on Executive’s Federal income tax return. (b) If, for any reason, the Internal Revenue Service or any other taxing authority proposes an adjustment to the amount of Excise Tax due with respect to any payments or with respect to any additional amounts received by Executive pursuant to this Agreement, Executive will notify Employer immediately of such proposed adjustment and shall give Employer the right to contest such proposed adjustment on Executive’s behalf; provided, however, that Executive may pay such claim if Employer does not take any action prior to the time such payment is due. Employer shall bear and pay directly all costs related to or associated with any contest, regardless of outcome, and shall have complete control over such contest as it relates to the Excise Tax, including whether such contest shall be by way of non-payment of the Excise Tax, payment of the Excise Tax under protest, or payment of the Excise Tax accompanied by a claim for a refund. Employer shall pay to Executive (i) an amount equal to the Excise Tax required to be paid to the Internal Revenue Service by Executive as a result of the outcome of any contest, any penalties or interest thereon, and (ii) a Gross-up Payment computed in the same manner and subject to the same adjustments as other Gross-up Payments previously described. Payment by Employer of an amount equal to the Excise Tax tax and Gross-up Payment shall be made to Executive in advance of the due date for payment of Excise Taxes. (c) In the event that the amount of any additional payments made pursuant to this Section 13 exceeds the amount determined to have been due, the excess additional amounts made shall constitute a loan by Employer to Executive payable within 30 days after receipt by Executive of the refund from the Internal Revenue Service together with any interest received.