Common use of Effect of Section 280G of the Internal Revenue Code Clause in Contracts

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that this Agreement becomes operative and except it is determined (as provided in Section 7(b), to the extent hereafter provided) that any payment (other than the Gross-Up payments provided for in this Section 3 and Annex A) or distribution by the Company or any of any type its Affiliates to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entityExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, performance share, performance unit, 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 "Total Payments"a “Payment”), is or will would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the "Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax"”), then the Total Payments shall Executive will be reduced entitled to receive an additional payment or payments (but not below zero) if and collectively, a “Gross-Up Payment”). The Gross-Up Payment will be 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 any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the extent that a reduction Excise Tax imposed upon the Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive will be considered to pay (x) federal income taxes at the highest rate in effect in the Total Payments would result year in which the Executive retaining a larger amount, on an afterGross-tax basis Up Payment will be made and (taking into account federal, y) state and local income taxes and at the Excise Tax), than if highest rate in effect in the Executive received state or locality in which the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order Gross-Up Payment would be subject to the Company to effectuate the foregoing, the Company shall reduce state or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensationlocal tax. (b) The determination of whether the Total Payments shall obligations set forth in Section 3(a) will be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation subject to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, procedural provisions described in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.Annex A.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of anything contained in this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive Employee by the Company (or by Company, any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entityperson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), ) is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive Employee retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive Employee received the entire amount of such Total Payments. Unless the Executive Employee shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined hereinhereinafter defined). Any notice given by the Executive Employee pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the ExecutiveEmployee's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 10(a) and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive Employee within ten (10) days of the last day of Executive's employmentTermination Date. If the Accounting Firm determines that no Excise Tax is payable by the Executive Employee with respect to the Total Payments, it shall furnish the Executive Employee with an opinion reasonably acceptable to the Executive Employee that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the ExecutiveEmployee. If the Accounting Firm determines that an Excise Tax would be payable, the Executive Employee shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 710(a), or to have such Determination reviewed by another Eligible Accounting Firm an accounting firm selected by the ExecutiveEmployee, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and ExecutiveEmployee.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that this Agreement becomes operative and except it is determined (as provided in Section 7(b), to the extent hereafter provided) that any payment (other than the Gross-Up payments provided for in this Section 3 and Annex A) or distribution by the Company or any of any type its Affiliates to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entityExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, performance share, performance unit, 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 "Total Payments"a “Payment”), is or will would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the "Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax"”), then the Total Payments shall Executive will be reduced entitled to receive an additional payment or payments (but not below zero) if and to the extent that collectively, a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after“Gross-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined hereinUp Payment”). Any notice given The Gross-Up Payment will be in an amount such that, after payment by the Executive pursuant of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the preceding sentence shall take precedence over Excise Tax imposed upon the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensationPayment. (b) The determination of whether the Total Payments shall obligations set forth in Section 3(a) will be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation subject to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, procedural provisions described in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.Annex A.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of anything contained in this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to the payments and benefits provided under this Agreement and benefits provided to, or for the benefit of of, the Executive by under any other Company plan or agreement (such payments or benefits collectively referred to herein as the Company "Payments") would be subject to the excise tax (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of "Excise Tax") imposed under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in the Total Payments would result in no Payment to be made or benefit to be provided to the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and shall be subject to the Excise TaxTax (such reduced amount is hereinafter referred to as the "Limited Payment Amount"), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, Payments by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined hereinhereinafter defined). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in to the Limited Payment Amount pursuant to this Section 7 Agreement and the amount of such reduction Limited Payment Amount shall be made made, at the Company's expense expense, by an accounting firm selected by the Company from among its independent auditors and reasonably acceptable to the Executive which is one of the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day Termination Date, if applicable, or such other time as requested by the Company or by the Executive (provided the Executive reasonably believes that any of Executive's employment. If the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Payments. The Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (aA) Notwithstanding any other provision of this Agreement to the contrary, and except Except as provided in Section 7(bsubsection (B), to in the extent event it shall be determined that any payment or distribution of any type type, including accelerated vesting, to or for the benefit of the Executive Officer, by the Company (or by Employer, any affiliate of the CompanyEmployer, any person or entity Person who acquires ownership or effective control of the Company Employer or ownership of a substantial portion of the CompanyEmployer's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), ) or any affiliate of such person or entityPerson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Total Officer shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Officer of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Officer retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (B) Notwithstanding subsection (A) or any other provision of this Agreement to the contrary, in the event that the Payments (excluding the payment provided for in subsection (A)) exceed by no more than 20% or $100,000, the maximum amount of Payments which if made or provided to the Officer would not be subject to an Excise Tax, the Officer will not be entitled to a Gross-Up Payment and the Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in no Payment to be made or benefit to be provided to the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and Officer shall be subject to the Excise Tax), than ; it being the intent of the parties then the Payments shall be reduced only if the Executive received economic detriment to the entire amount Officer (on a pre-tax basis) is less than the lower of such Total $100,000 or 20% of the Payments. Unless the Executive Officer shall have given prior written notice specifying a different order to the Company Employer to effectuate the foregoing, the Company Employer shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination "Determination" (as defined hereinbelow). Any notice given by the Executive Officer pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the ExecutiveOfficer's rights and entitlements to any benefits or compensation. (bC) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 Agreement and the amount of such reduction reduction, all mathematical determinations, and all determinations as to whether any of the Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Section, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this subsection (C), shall be made at the Company's expense by an independent accounting firm selected by the Company Officer from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm , which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and documentation any other relevant matter, both to the Company Employer and the Executive within Officer by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Employer or the Officer (if the Officer reasonably believes that any of the last day of Executive's employmentPayments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total PaymentsOfficer, it shall furnish the Executive Officer and the Employer with an opinion reasonably acceptable to the Executive Officer and the Employer that no Excise Tax will is payable (including the reasons therefor) and that the Officer has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be imposed with respect payable, it shall be paid (including through withholding of taxes) to any such payments andthe Officer no later than the due date for payment of the Excise Tax. Any determination by the Accounting Firm shall be binding upon the Employer and the Officer, absent manifest error, such Determination shall be binding, final and conclusive upon . As a result of uncertainty in the Company and application of Section 4999 of the Executive. If Code at the time of the initial determination by the Accounting Firm determines hereunder, it is possible that Gross-Up Payments not made by the Employer should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Employer which should not have been made ("Overpayment"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Excise Tax would Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Officer as a result of such Underpayment) shall be promptly paid by the Employer to or for the benefit of the Officer. In the case of an Overpayment, the Officer shall, at the direction and expense of the Employer, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Employer, and otherwise reasonably cooperate with the Employer to correct such Overpayment, provided, however, that (i) the Officer shall not in any event be obligated to return to the Employer an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) if a Gross-Up Payment is determined to be payable, this provision shall be interpreted in a manner consistent with an intent to make the Executive shall have Officer whole, on an after-tax basis, from the right to accept the Determination application of the Accounting Firm as Excise Tax, it being understood that the correction of an Overpayment may result in the Officer repaying to the extent Employer an amount which is less than the Overpayment. The cost of the reduction, if any, all such determinations made pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected shall be paid by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and ExecutiveEmployer.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b3(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate Affiliate of such person or entityPerson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below less than zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) If the reduction of the Payments as provided in Section 3(a) would exceed $200,000, Section 3 (a) shall not apply and 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 any 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 Total Payments. (c) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 3 and the amount of such reduction reduction, and the determination of whether a Gross-Up Payment is payable, shall be made at the Company's expense expense, by an accounting firm selected by the Company from among its independent auditors and which is one of the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day Termination Date, if applicable, or such other time as requested by the Company or by the Executive (provided the Executive reasonably believes that any of Executive's employment. If the Payments may be subject to the Excise Tax), and if the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Payments. The Determination shall be binding, final and conclusive upon the Company and the Executive. (d) If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. If Any determination by the Accounting Firm determines shall be binding upon the Company and the Executive, absent manifest error. As a result of 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 not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Excise Tax would Underpayment, the amount of such Underpayment (including any applicable interest and penalties) shall be payablepromptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executiveshall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, PROVIDED, HOWEVER, that (i) the Executive shall not in which case any event be obligated to return to the determination Company an amount greater than the net after-tax portion of such second accounting firm the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) if a Gross-Up Payment is determined to be payable, this provision shall be bindinginterpreted in a manner consistent with an intent to make the Executive whole, final and conclusive upon on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company and Executivean amount which is less than the Overpayment. The cost of all such determinations made pursuant to this Section 3 shall be paid by the Company.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any <PAGE> 8 other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b10(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) only if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 10 and the amount of such reduction shall be made at the Company's expense by an accounting firm fire jointly selected by the Company and the Executive from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 710, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (<PAGE> 10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (ai) Notwithstanding any other provision of Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it is determined by the Company and except as provided in Section 7(b), to the extent its US tax advisors that any payment (other than the Gross-Up Payments (as defined below) provided for in this Section 7) or distribution by the Company or any of any type its affiliates to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entityExecutive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, performance share, performance unit, 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 "Total Payments"a “Payment”), is or will would be subject to the excise tax imposed under by Section 4999 of the Code (or any successor provision thereto), by reason of being considered “contingent on a change in ownership or control” of the "Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereinafter collectively referred to as the “Excise Tax"”), then the Total Payments shall Executive will be reduced entitled to receive an additional payment or payments (but not below zero) if and collectively, a “Gross-Up Payment”). The Gross-Up Payment will be 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 any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the extent that a reduction Excise Tax imposed upon the Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive will be considered to pay (x) federal income taxes at the highest rate in effect in the Total Payments would result year in which the Executive retaining a larger amount, on an afterGross-tax basis Up Payment will be made and (taking into account federal, y) state and local income taxes and at the Excise Tax)highest rate in effect in the state or locality in which the Gross-Up Payment would be subject to state or local tax, than if net of the Executive received the entire amount maximum reduction in federal income tax that could be obtained from deduction of such Total Paymentsstate and local taxes. Unless the Executive Any Gross-Up Payment shall have given prior written notice specifying a different order to be paid by the Company to effectuate the foregoingExecutive at the same time as the associated Payment, or as soon thereafter as is practical, but in all cases, within 25 days of the receipt of notice from the Executive that there has been a Payment. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination of the Company, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”). In the event the Company exhausts or does not seek to pursue its remedies pursuant to Section 7(i)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, the Company shall reduce and its US tax advisors, or eliminate at the Total PaymentsExecutive’s election and expense, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are a nationally recognized accounting firm to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected appointed by the Executive, at shall determine the expense amount of Underpayment that has occurred. If the Executive elects to have a nationally recognized accounting firm determine the amount of any Underpayment, detailed supporting calculations of such determination shall be provided to the Company. Any such Underpayment shall be paid by the Company to or for the benefit of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and ExecutiveExecutive as promptly as practicable.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b10.3(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate Affiliate of such person or entityPerson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below less than zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) If the reduction of the Payments as provided in Section 10.3(a) would exceed $25,000, Section 10.3(a) shall not apply and 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 any 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 Total Payments. (c) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 10.3 and the amount of such reduction reduction, and the determination of whether a Gross-Up Payment is payable, shall be made at the Company's expense expense, by an accounting firm selected by the Company from among its independent auditors and which is one of the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day Termination Date, if applicable, or such other time as requested by the Company or by the Executive (provided the Executive reasonably believes that any of Executive's employment. If the Payments may be subject to the Excise Tax), and if the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Payments. The Determination shall be binding, final and conclusive upon the Company and the Executive. (d) If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. If Any determination by the Accounting Firm determines shall be binding upon the Company and the Executive, absent manifest error. As a result of 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 not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Excise Tax would Underpayment, the amount of such Underpayment (including any applicable interest and penalties) shall be payablepromptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executiveshall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, PROVIDED, HOWEVER, that (i) the Executive shall not in which case any event be obligated to return to the determination Company an amount greater than the net after-tax portion of such second accounting firm the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) if a Gross-Up Payment is determined to be payable, this provision shall be bindinginterpreted in a manner consistent with an intent to make the Executive whole, final and conclusive upon on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company and Executivean amount which is less than the Overpayment. The cost of all such determinations made pursuant to this Section 10.3 shall be paid by the Company.

Effect of Section 280G of the Internal Revenue Code. (aA) Notwithstanding any other provision of this Agreement to the contrary, and except Except as provided in Section 7(bsubsection (B), to in the extent event it shall be determined that any payment or distribution of any type type, including accelerated vesting, to or for the benefit of the Executive Officer, by the Company (or by Employer, any affiliate of the CompanyEmployer, any person or entity Person who acquires ownership or effective control of the Company Employer or ownership of a substantial portion of the CompanyEmployer's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), ) or any affiliate of such person or entityPerson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Total Officer shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Officer of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-Up Payment, the Officer retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (B) Notwithstanding subsection (A) or any other provision of this Agreement to the contrary, in the event that the Payments (excluding the payment provided for in subsection (A)) exceed by no more than 20% or $100,000, the maximum amount of Payments which if made or provided to the Officer would not be subject to an Excise Tax, the Officer will not be entitled to a Gross-Up Payment and the Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in no Payment to be made or benefit to be provided to the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and Officer shall be subject to the Excise Tax), than ; it being the intent of the parties then the Payments shall be reduced only if the Executive received economic detriment to the entire amount Officer (on a pre-tax basis) is less than the lower of such Total $100,000 or 20% of the Payments. Unless the Executive Officer shall have given prior written notice specifying a different order to the Company Employer to effectuate the foregoing, the Company Employer shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination "Determination" (as defined hereinbelow). Any notice given by the Executive Officer pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the ExecutiveOfficer's rights and entitlements to any benefits or compensation. (bC) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 Agreement and the amount of such reduction reduction, all mathematical determinations, and all determinations as to whether any of the Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Section, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this subsection (C), shall be made at the Company's expense by an independent accounting firm selected by the Company Officer from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm , which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and documentation any other relevant matter, both to the Company Employer and the Executive within Officer by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Employer or the Officer (if the Officer reasonably believes that any of the last day of Executive's employmentPayments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total PaymentsOfficer, it shall furnish the Executive Officer and the Employer with an opinion reasonably acceptable to the Executive Officer and the Employer that no Excise Tax will is payable (including the reasons therefor) and that the Officer has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be imposed with respect payable, it shall be paid (including through withholding of taxes) to any such payments andthe Officer no later than the due date for payment of the Excise Tax. Any determination by the Accounting Firm shall be binding upon the Employer and the Officer, absent manifest error, such Determination shall be binding, final and conclusive upon . As a result of uncertainty in the Company and application of Section 4999 of the Executive. If Code at the time of the initial determination by the Accounting Firm determines hereunder, it is possible that Gross-Up Payments not made by the Employer should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Employer which should not have been made ("Overpayment"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Excise Tax would Underpayment, the amount of such Underpayment (together with any interest and penalties payable by the Officer as a result of such Underpayment) shall be promptly paid by the Employer to or for the benefit of the Officer. In the case of an Overpayment, the shall, at the direction and expense of the Employer, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Employer, and otherwise reasonably cooperate with the Employer to correct such Overpayment, provided, however, that (i) the Officer shall not in any event be obligated to return to the Employer an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) if a Gross-Up Payment is determined to be payable, this provision shall be interpreted in a manner consistent with an intent to make the Executive shall have Officer whole, on an after-tax basis, from the right to accept the Determination application of the Accounting Firm as Excise Tax, it being understood that the correction of an Overpayment may result in the Officer repaying to the extent Employer an amount which is less than the Overpayment. The cost of the reduction, if any, all such determinations made pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected shall be paid by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and ExecutiveEmployer.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement agreement to the contrary, and except as provided in Section 7(b16(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive you by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder)), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive your retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive you received the entire amount of such Total Payments. Unless the Executive you shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive you pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's your rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 16 and the amount of such reduction shall be made at the Company's expense by an accounting firm jointly selected by you and the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive you within ten (10) days of the last day of Executive's employmentTermination Date. If the Accounting Firm Xxxxxx Xxxxx February 20, 2008 Page 11 determines that no Excise Tax is payable by the Executive you with respect to the Total Payments, it shall furnish the Executive you with an opinion reasonably acceptable to the Executive you that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company you and the ExecutiveCompany. If the Accounting Firm determines that an Excise Tax would be payable, the Executive you shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 716, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executiveyou, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon you and the Company and ExecutiveCompany.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm jointly selected by the Company and the Executive from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to or for the benefit of the Executive by the Company (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent that a reduction in the Total Payments would result in the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined herein). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation.. <PAGE> 8 (b) The determination of whether the Total Payments shall be reduced as provided in this Section 7 and the amount of such reduction shall be made at the Company's expense by an accounting firm selected by the Company from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day of Executive's employment. If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except Except as provided in Section 7(b5.8(b), to in the extent event it shall be determined that any payment (other than the payment provided for in this Section 5.8) or distribution of any type to or for the benefit of the Executive Executive, by the Company (or by Company, any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"'), and the regulations thereunder), ) or any affiliate of such person or entityperson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"'), is or will be subject to the excise tax imposed under by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"'), then the Total 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 any income tax, employment tax or 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 Payments. (b) Notwithstanding Section 5.8(a) or any other provision of this Agreement to the contrary, in the event that the Payments (other than the payment provided for in this Section 5.8) exceed by less than fifty-thousand dollars ($50,000) an amount at which no Payment to be made or benefit to be provided to the Executive would be subject to an Excise Tax, the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in the Total Payments would result in no Payment to be made or benefit to be provided to the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and shall be subject to the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice to the Company specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, first by first reducing or eliminating the portion of the Total Payments (other than Payments as to which the Internal Revenue Service (the "IRS') Proposed Regulations §1.280G-1 Q/A-24(c) applies ("Q/A-24(c) Payments')) which are not payable in cash and then cash, second by reducing or eliminating cash payments, and third by reducing Q/A 24(c) Payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination "Determination' (as defined hereinbelow). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (bc) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 Agreement and the amount of such reduction reduction, all mathematical determinations, and all determinations as to whether any of the Payments are "parachute payments' (within the meaning of Section 280G of the Code), that are required to be made under this Section 5.8, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts referred to in this Section 5.8(c), shall be made at the Company's expense by an independent accounting firm selected by the Company Executive from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"'). The Accounting Firm , which shall provide its determination (the "Determination"'), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and documentation any other relevant matter, both to the Company and the Executive within by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the last day of Executive's employmentPayments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total PaymentsExecutive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax will is payable (including the reasons therefor) and that the Executive has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be imposed with respect to any such payments andpayable, absent manifest error, such Determination it shall be binding, final paid to the Executive within twenty (20) days after the Determination (and conclusive all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. If As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm determines hereunder, it is possible that an Excise Tax would be payableGross-Up Payments not made by the Company should have been made ("Underpayment'), or that Gross-Up Payments will have been made by the Executive shall Company which should not have the right to accept the Determination of been made ("Overpayments'). In either such event, the Accounting Firm as to shall determine the extent amount of the reductionUnderpayment or Overpayment that has occurred. In the case of an Underpayment, if any, pursuant to this Section 7, or to have the amount of such Determination reviewed by another Eligible Accounting Firm selected Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. The Executive and the Company shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including defending of any claim or assessment by the IRS and the filing of claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct any Overpayment or Underpayment, provided, however, that (i) the Executive shall not in which case any event be obligated to return to the determination Company an amount greater than the net after-tax portion of any Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities; (ii) if, in connection with any claim by the IRS that may result in the payment of an additional amount pursuant to this Section 5.8, the Company requests that the Executive pay to the IRS any amount claimed by the IRS to be due and to file a claim for a refund, the Company shall advance to the Executive the amount of such second accounting firm payment; and (iii) this provision shall be bindinginterpreted in a manner consistent with an intent to make the Executive whole, final and conclusive upon on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company and Executivean amount which is less than the Overpayment. The cost of all determinations made pursuant to this Section 5.8 shall be paid by the Company."

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of this Agreement to the contrary, and except Except as provided in Section 7(b3(b), to in the extent event it shall be determined that any payment (other than the payment provided for in this Section 3) or distribution of any type to or for the benefit of the Executive Executive, by the Company (or by Company, any affiliate Affiliate of the Company, any person or entity Person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder), ) or any affiliate Affiliate of such person or entityPerson, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the "Excise Tax"), then the Total 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 any income tax, employment tax or 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 Payments. (b) Notwithstanding Section 3(a) or any other provision of this Agreement to the contrary, in the event that the Payments (other than the payment provided for in this Section 3) exceed by less than fifty-thousand dollars ($50,000) an amount at which no Payment to be made or benefit to be provided to the Executive would be subject to an Excise Tax, the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in the Total Payments would result in no Payment to be made or benefit to be provided to the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and shall be subject to the Excise Tax), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice to the Company specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, first by first reducing or eliminating the portion of the Total Payments (other than Payments as to which the Internal Revenue Service (the "IRS") Proposed Regulations §1.280G-1 Q/A-24(c) applies ("Q/A-24(c) Payments")) which are not payable in cash and then cash, second by reducing or eliminating cash payments, and third by reducing Q/A 24(c) Payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination "Determination" (as defined hereinbelow). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation. (bc) The determination of whether the Total Payments shall be reduced as provided in pursuant to this Section 7 Agreement and the amount of such reduction reduction, all mathematical determinations, and all determinations as to whether any of the Payments are "parachute payments" (within the meaning of Section 280G of the Code), that are required to be made under this Section 3, including determinations as to whether a Gross-Up Payment is required, the amount of such Gross-Up Payment and amounts referred to in this Section 3(c), shall be made at the Company's expense by an independent accounting firm selected by the Company Executive from among its independent auditors and the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "Accounting Firm"). The Accounting Firm , which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and documentation any other relevant matter, both to the Company and the Executive within by no later than ten (10) days following the Termination Date, if applicable, or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the last day of Executive's employmentPayments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total PaymentsExecutive, it shall furnish the Executive and the Company with an opinion reasonably acceptable to the Executive and the Company that no Excise Tax will is payable (including the reasons therefor) and that the Executive has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be imposed with respect to any such payments andpayable, absent manifest error, such Determination it shall be binding, final paid to the Executive within twenty (20) days after the Determination (and conclusive all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. If As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm determines hereunder, it is possible that an Excise Tax would be payableGross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Executive shall Company which should not have the right to accept the Determination of been made ("Overpayments"). In either such event, the Accounting Firm as to shall determine the extent amount of the reductionUnderpayment or Overpayment that has occurred. In the case of an Underpayment, if any, pursuant to this Section 7, or to have the amount of such Determination reviewed by another Eligible Accounting Firm selected Underpayment (together with any interest and penalties payable by the Executive as a result of such Underpayment) shall be promptly paid by the Company to or for the benefit of the Executive. The Executive and the Company shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including defending of any claim or assessment by the IRS and the filing of claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct any Overpayment or Underpayment, provided, however, that (i) the Executive shall not in which case any event be obligated to return to the determination Company an amount greater than the net after-tax portion of any Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities; (ii) if, in connection with any claim by the IRS that may result in the payment of an additional amount pursuant to this Section 3, the Company requests that the Executive pay to the IRS any amount claimed by the IRS to be due and to file a claim for a refund, the Company shall advance to the Executive the amount of such second accounting firm payment; and (iii) this provision shall be bindinginterpreted in a manner consistent with an intent to make the Executive whole, final and conclusive upon on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company and Executivean amount which is less than the Overpayment. The cost of all determinations made pursuant to this Section 3 shall be paid by the Company.

Effect of Section 280G of the Internal Revenue Code. (a) Notwithstanding any other provision of anything contained in this Agreement to the contrary, and except as provided in Section 7(b), to the extent that any payment or distribution of any type to the payments and benefits provided under this Agreement and benefits provided to, or for the benefit of of, the Executive by under any other Company plan or agreement (such payments or benefits collectively referred to herein as the Company “Payments”) would be subject to the excise tax (or by any affiliate of the Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of “Excise Tax”) imposed under Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and the regulations thereunder), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Total Payments"), is or will be subject to the excise tax imposed under Section 4999 of the Code (the "Excise Tax"), then the Total Payments shall be reduced (but not below zero) if and to the extent necessary so that a reduction in the Total Payments would result in no Payment to be made or benefit to be provided to the Executive retaining a larger amount, on an after-tax basis (taking into account federal, state and local income taxes and shall be subject to the Excise TaxTax (such reduced amount is hereinafter referred to as the “Limited Payment Amount”), than if the Executive received the entire amount of such Total Payments. Unless the Executive shall have given prior written notice specifying a different order to the Company to effectuate the foregoing, the Company shall reduce or eliminate the Total Payments, Payments by first reducing or eliminating the portion of the Total Payments which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the Determination (as defined hereinhereinafter defined). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's ’s rights and entitlements to any benefits or compensation. (b) The determination of whether the Total Payments shall be reduced as provided in to the Limited Payment Amount pursuant to this Section 7 Agreement and the amount of such reduction Limited Payment Amount shall be made made, at the Company's expense ’s expense, by an accounting firm selected by the Company from among its independent auditors and reasonably acceptable to the Executive which is one of the five (5) largest accounting firms (an "Eligible Accounting Firm") in the United States (the "“Accounting Firm"”). The Accounting Firm shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation to the Company and the Executive within ten (10) days of the last day Termination Date, if applicable, or such other time as requested by the Company or by the Executive (provided the Executive reasonably believes that any of Executive's employment. If the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by the Executive with respect to the Total Payments, it shall furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to any such payments and, absent manifest error, such Payments. The Determination shall be binding, final and conclusive upon the Company and the Executive. If the Accounting Firm determines that an Excise Tax would be payable, the Executive shall have the right to accept the Determination of the Accounting Firm as to the extent of the reduction, if any, pursuant to this Section 7, or to have such Determination reviewed by another Eligible Accounting Firm selected by the Executive, at the expense of the Company, in which case the determination of such second accounting firm shall be binding, final and conclusive upon the Company and Executive.