Common use of Excess Parachute Payment Clause in Contracts

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwise, would constitute an “Excess Parachute Payment” (as that term is defined in Section 280G of the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement shall be reduced to the minimum extent necessary so that no portion of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is (a) Notwithstanding anything to the intention of the Executivecontrary in this Agreement, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or if any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer paid or either of the Holding Companies shall be non-deductible payable to the Employer Employee pursuant to this Agreement or any other plan, program or arrangement maintained by the Holding Companies, as applicable, by reason of Corporation or an Affiliate would constitute a “parachute payment” within the operation meaning of Section 280G of the Code relating Code, then the Employee shall receive the greater of: (i) one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a “parachute paymentspayment”; or (ii) the amount of such payments and benefits, after taking into account all federal, state and local taxes, including the excise tax imposed under Section 4999 of the Code, if such amount would be greater than the amount specified in Section 4.2(a), after taking into account all federal, state and local taxes. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that Any reduction to any payment made or pursuant to Section 4.2(a) shall be made consistent with the requirements of Section 409A of the Code. (b) All determinations required to be made or other benefit provided or under this Section 4.2 shall be made by a public accounting firm that is retained by the Corporation to be provided provide tax advice as of the date immediately prior to the Executive, whether under this Agreement Change in Control (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Corporation and the Employee within 15 business days of the receipt of notice from the Corporation or otherwise, would constitute an the Employee that there has been a potential “Excess Parachute Paymentparachute payment” (as that term is defined in within the meaning of Section 280G of the Code, or such earlier time as requested by the Corporation. Notwithstanding the foregoing, in the event: (i) that the Accounting Firm is precluded from performing such services under applicable auditor independence rules; or (ii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Corporation shall appoint another nationally recognized public accounting firm to be the Accounting Firm. (c) If, pursuant to Section 4.2(a), then any payment or benefit payable hereunder is required to be reduced, the aggregate amount or value of any the Severance Benefits due Accounting Firm shall provide a written opinion to the Executive under this Agreement shall be reduced Employee that: (i) such reduction is necessary in order for the Employee to the minimum extent necessary so that no portion avoid having to pay or report any excise tax pursuant to Section 4999 of the Severance Benefits made Code; and (ii) that the Employee is not required to pay or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit report any excise tax under Section 4999 of the ExecutiveCode on the Employee’s federal income tax return. (d) All fees, such Excess Parachute Payment shall be refunded to costs and expenses (including, but not limited to, the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dcosts of retaining experts) of the Code, compounded annually, or at such other rate as may be required in order that no such payments Accounting Firm shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved borne by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliatesCorporation. The determination of such partner as to by the amount to Accounting Firm shall be determined under this Section 5(d) binding upon the Corporation and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationEmployee.

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in In the event that it is determined by the Employer in its reasonable discretion that any payment made or benefit received or to be made or other benefit provided or to be provided received by Employee in connection with a Change of Control, whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the “Code”)) with Employer or which becomes so affiliated pursuant to the transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the “Total Payments”), is deemed to be an “Excess Parachute Payment” (as that term is defined in whole or in part) to Employee within the meaning of Section 280G of the Code), as in effect at such time, no change shall be made to the Total Payments to be made in connection with the Change of Control, except that, in addition to all other amounts to be paid to Employee by Employer, Employer shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the “Excess Parachute Payment” received by Employee (determined without regard to any payments made to Employee pursuant to this Section 6) and (ii) dividing the product so obtained by the amount obtained by subtracting (A) the aggregate local, state and Federal income and employment tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code and the phase-out of the personal exemption) applicable to the receipt by Employee of the “Excess Parachute Payment” (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is Employer’s intention that Employee’s net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 6, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due Total Payments shall be determined by Employer’s independent auditors in accordance with the principles of Sections 280G of the Code. The calculation of the excess parachute payment is as follows: X = Y ) (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up Payment, Y is the total Excise Tax imposed with respect to such Change in Control Benefit, A is the Excise Tax rate in effect at the time, B is the highest combined marginal federal income and applicable state income tax rate in effect, after taking into account the deductibility of state income taxes against federal income taxes to the Executive extent allowable, for the calendar year in which the Tax Gross-Up Payment is made, and C is the combined federal and state employment tax rate in effect for the calendar year in which the Tax Gross-Up Payment is made. Subject to the provisions of this Section 5, all determinations required to be made under this Agreement Section 5, including (i) whether and when a Tax Gross-Up Payment is required, (ii) the amount of such Tax Gross-Up Payment, and (iii) the assumptions to be utilized in arriving at such determination, shall be reduced made by independent auditors of Employer (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the minimum extent necessary so that no portion Employer and Employee within 15 business days of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes receipt of notice from Employee that there has been an Excess Parachute Payment, or such earlier time as is requested by Employer. To All fees and expenses of the extent Accounting Firm shall be borne solely by Employer. Any Tax Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by Employer to Employee within thirty (30) days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that an Excess Parachute no Excise Tax is payable by Employee, it shall furnish Employee with a written opinion that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon Employer and Employee. In the event that a Tax Gross-Up Payment has was not made but should have been made (“Underpayment”), and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment (including, without limitation, penalties and interest), and Employer shall promptly pay the Underpayment to or for the benefit of Employee. In the Executiveevent that a Tax Gross-Up Payment was made but should not have been made (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment and Employee shall promptly pay the Overpayment to Employer. Employee shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of the Tax Gross-Up Payment (“Gross-Up Notice”). Employee shall give Employer the Gross-Up Notice as soon as practicable, but no later than 10 business days after Employee is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date of the Gross-Up Notice (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall: (i) give Employer any information reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order effectively to contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim. Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed on Employee as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5, Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner. In the event that Employer elects to contest the tax, Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine. If Employer directs Employee to pay such claim and xxx for a refund, Employer shall advance the amount of such payment to Employee, on an interest–free basis, for any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. In the event that the Internal Revenue Service requests an extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due, such Excess Parachute Payment an extension may, at the election of Employee, be limited solely to such contested amount. Furthermore, Employer’s control of the contest shall be refunded limited to the Employer issues with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Coderespect to which a Tax Gross-Up Payment would be payable hereunder, compounded annually, or at such other rate as may be required in order that no such payments and Employee shall be non-deductible entitled to the Employer settle or the Holding Companiescontest, as applicablethe case may be, any other issue raised by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280GInternal Revenue Service or any other taxing authority. If, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the receipt by Employee of an amount advanced by Employer has sent him written notice of pursuant to Section 5, Employee becomes entitled to receive any refund with respect to such claim, Employee shall promptly pay Employer the need for such reduction, the Employer may determine the method amount of such reduction in its sole discretionrefund (together with any interest paid or credited thereon after taxes applicable thereto). If any dispute between If, after the receipt by Employee of an amount advanced by Employer and the Executive as pursuant to any of the amounts to be determined under this Section 5(d)5, or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm determination is made that Employee shall not be entitled to any refund with respect to such claim and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the independent registered public accounting firm expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Tax Gross-Up Payment to be paid. Notwithstanding anything to the contrary in this Section 5, in the event that a Tax Gross-Up Payment is made before the date on which Employee actually owes the Excise Tax, then the amount of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts payment shall be final and binding on discounted using the Employerapplicable interest rate, i.e., the Holding Companies and prime rate, used to compute the Executive. The Employer and present value of an amount at the Holding Companies shall bear same time in the costs future for purposes of any such determinationcomputing the Excise Tax.

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in In the event that it is determined by the Employer in its reasonable discretion that any payment made or benefit received or to be made or other benefit provided or to be provided received by Executive in connection with a Change of Control, whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by the Company, any predecessor or successor to the Company or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")) with the Company or which becomes so affiliated pursuant to the transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the "Total Payments") is deemed to be an “"Excess Parachute Payment” " (as that term is defined in whole or in part) to Executive within the meaning of Section 280G of the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement shall be reduced to the minimum extent necessary so that no portion of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d280G(b)(1) of the Code, compounded annually, or as in effect at such other rate as may be required in order that time, no such payments change shall be non-deductible made to the Employer or Total Payments to be made in connection with the Holding CompaniesChange of Control, as applicableexcept that, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments in addition to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the all other amounts to be paid to Executive by the Company hereunder, the Company shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Executive, in addition to any other payment, coverage or benefit due and owing hereunder, an amount determined under by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the "Excess Parachute Payment" received by Executive (determined without regard to any payments made to Executive pursuant to this Section 5(d), or 6 and (ii) dividing the method of calculating such amounts, cannot be resolved product so obtained by the Employer amount obtained by subtracting (A) the aggregate local, state and Federal income tax rates (including the Executive, either value of the Employer or loss of itemized deductions under Section 68 of the Executive after giving three (3Internal Revenue Code) days written notice applicable to the otherreceipt by Executive of the "Excess Parachute Payment" (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is the Company's intention that Executive's net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 6, may refer (i) no portion, if any, of the dispute Total Payments, the receipt or enjoyment of which Executive shall have effectively waived in writing prior to a partner the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly Total Payments shall be determined by the Employer, Company's independent auditors in accordance with the Holding Companies principles of Sections 280G(d)(3) and the Executive, which firm shall not be the independent registered public accounting firm (4) of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationCode.

Excess Parachute Payment. It is 5.3.1 Notwithstanding any provision of this Agreement to the intention of the Executivecontrary, and subject to Section 5.3.2 below, the Employer and the Holding Companies that no payment by the Employer Company shall not be required to or for the pay any benefit of the Executive under this Agreement and/or if, upon the advice of counsel, the Company determines that the payment of such benefit would be prohibited by 12 C.F.R. Part 359 or any other agreement successor regulations regarding employee compensation promulgated by any regulatory agency having jurisdiction over the Company or plan pursuant to which its affiliates. 5.3.2 Notwithstanding the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreementpreceding, in the event that it is determined the Executive becomes entitled to the benefits under this Agreement, and any such benefits will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code, the Company shall pay the Executive coincident with the first payment of benefits under this Agreement pursuant to the provisions of Article 2 or 3 of this Agreement, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Employer in its reasonable discretion that Executive after deduction of any payment made Excise Tax on the benefits and after application of any federal, state, or local income taxes on the benefits and the Gross-Up Payments, shall be equal to the benefits provided under Article 2 or 3 of this Agreement. (a) For purposes of determining whether any of the benefits provided under this Agreement will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be made received by the Executive in connection with a Change in Control of the Company, or other benefit provided or to be provided the Executive’s Separation from Service (whether pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute an “Excess Parachute Payment” (as that term is defined in Section 280G of arrangement or agreement with the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement Company) shall be reduced to treated as “parachute payments” within the minimum extent necessary so that no portion meaning of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d280G(b)(2) of the Code, compounded annuallyand all “excess parachute payments” within the meaning of Section 280(G)(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280(G)(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or at such other rate as may be required excess parachute payments (in order that no such payments whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, (ii) the amount of the benefits provided under this Agreement which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of such benefits, or (B) the amount of excess parachute payments within the meaning of Section 280(G)(b)(1) and (4) (after applying clause (i), above), and (iii) the value of any such non-deductible to cash benefits or any deferred payment or benefit shall be determined by the Employer or Company’s independent auditors in accordance with the Holding Companies, as applicable, by reason principles of Sections 280(G)(d)(3) and (4) of the operation Code. (b) For purposes of said Section 280G. To determining the extent that there is more than one method amount of reducing the payments to bring them within the limitations of said Section 280GGross-Up Payment, the Executive shall determine be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which method shall the Gross-Up Payment is to be followedmade, provided that if and state and local income taxes at the highest marginal rates of taxation in the state and locality of the residence on the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice incurs a Separation from Service, net of the need for maximum reduction in federal income taxes which could be obtained from deduction of such reductionstate and local taxes. (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Executive incurs a Separation from Service, the Employer may determine Executive shall repay to the method Company at the time that the amount of such reduction in its sole discretion. If any dispute between Excise Tax is finally determined, the Employer and the Executive as to any portion of the amounts Gross-Up Payment attributable to be such reduction. In the event that the Excise Tax is determined under this Section 5(d)to exceed the amount taken into account hereunder at the time of the Executive’s Separation from Service (including by reason of any payment, the existence or the method amount of calculating such amounts, which cannot be resolved by determined at the Employer and time of the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the EmployerGross-Up Payment), the Holding Companies and the Executive, which firm Company shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination make an additional Gross-Up Payment in respect of such partner as excess (plus any interest payable with respect to such excess) at the time the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationexcess is finally determined.

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in In the event that it is determined by the Employer in its reasonable discretion that any payment made or benefit received or to be made or other benefit provided or to be provided received by Employee in connection with a Change of Control, whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the “Code”)) with Employer or which becomes so affiliated pursuant to the transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the “Total Payments”), is deemed to be an “Excess Parachute Payment” (as that term is defined in whole or in part) to Employee within the meaning of Section 280G of the Code), as in effect at such time, no change shall be made to the Total Payments to be made in connection with the Change of Control, except that, in addition to all other amounts to be paid to Employee by Employer, Employer shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the “Excess Parachute Payment” received by Employee (determined without regard to any payments made to Employee pursuant to this Section 6) and (ii) dividing the product so obtained by the amount obtained by subtracting (A) the aggregate local, state and Federal income and employment tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code and the phase-out of the personal exemption) applicable to the receipt by Employee of the “Excess Parachute Payment” (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is Employer’s intention that Employee’s net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 6, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due Total Payments shall be determined by Employer’s independent auditors in accordance with the principles of Sections 280G of the Code. The calculation of the excess parachute payment is as follows: X = Y / (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up Payment, Y is the total Excise Tax imposed with respect to such Change in Control Benefit, A is the Excise Tax rate in effect at the time, B is the highest combined marginal federal income and applicable state income tax rate in effect, after taking into account the deductibility of state income taxes against federal income taxes to the Executive extent allowable, for the calendar year in which the Tax Gross-Up Payment is made, and C is the combined federal and state employment tax rate in effect for the calendar year in which the Tax Gross-Up Payment is made. Subject to the provisions of this Section 6, all determinations required to be made under this Agreement Section 6, including (i) whether and when a Tax Gross-Up Payment is required, (ii) the amount of such Tax Gross-Up Payment, and (iii) the assumptions to be utilized in arriving at such determination, shall be reduced made by independent auditors of Employer (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the minimum extent necessary so that no portion Employer and Employee within 15 business days of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes receipt of notice from Employee that there has been an Excess Parachute Payment, or such earlier time as is requested by Employer. To All fees and expenses of the extent Accounting Firm shall be borne solely by Employer. Any Tax Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by Employer to Employee within thirty (30) days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that an Excess Parachute no Excise Tax is payable by Employee, it shall furnish Employee with a written opinion that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon Employer and Employee. In the event that a Tax Gross-Up Payment has was not made but should have been made (“Underpayment”), and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment (including, without limitation, penalties and interest), and Employer shall promptly pay the Underpayment to or for the benefit of Employee. In the Executiveevent that a Tax Gross-Up Payment was made but should not have been made (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment and Employee shall promptly pay the Overpayment to Employer. Employee shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of the Tax Gross-Up Payment (“Gross-Up Notice”). Employee shall give Employer the Gross-Up Notice as soon as practicable, but no later than 10 business days after Employee is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date of the Gross-Up Notice (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall: (i) give Employer any information reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order effectively to contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim. Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed on Employee as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6, Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner. In the event that Employer elects to contest the tax, Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine. If Employer directs Employee to pay such claim and xxx for a refund, Employer shall advance the amount of such payment to Employee, on an interest–free basis, for any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. In the event that the Internal Revenue Service requests an extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due, such Excess Parachute Payment an extension may, at the election of Employee, be limited solely to such contested amount. Furthermore, Employer’s control of the contest shall be refunded limited to the Employer issues with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Coderespect to which a Tax Gross-Up Payment would be payable hereunder, compounded annually, or at such other rate as may be required in order that no such payments and Employee shall be non-deductible entitled to the Employer settle or the Holding Companiescontest, as applicablethe case may be, any other issue raised by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280GInternal Revenue Service or any other taxing authority. If, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the receipt by Employee of an amount advanced by Employer has sent him written notice of pursuant to Section 6, Employee becomes entitled to receive any refund with respect to such claim, Employee shall promptly pay Employer the need for such reduction, the Employer may determine the method amount of such reduction in its sole discretionrefund (together with any interest paid or credited thereon after taxes applicable thereto). If any dispute between If, after the receipt by Employee of an amount advanced by Employer and the Executive as pursuant to any of the amounts to be determined under this Section 5(d)6, or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm determination is made that Employee shall not be entitled to any refund with respect to such claim and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the independent registered public accounting firm expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Tax Gross-Up Payment to be paid. Notwithstanding anything to the contrary in this Section 6, in the event that a Tax Gross-Up Payment is made before the date on which Employee actually owes the Excise Tax, then the amount of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts payment shall be final and binding on discounted using the Employerapplicable interest rate, i.e., the Holding Companies and prime rate, used to compute the Executive. The Employer and present value of an amount at the Holding Companies shall bear same time in the costs future for purposes of any such determinationcomputing the Excise Tax.

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in In the event that it is determined by the Employer in its reasonable discretion that any payment made or benefit received or to be made or other benefit provided or to be provided received by Employee in connection with a Change of Control, whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the “Code”)) with Employer or which becomes so affiliated pursuant to the transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the “Total Payments”), is deemed to be an “Excess Parachute Payment” (as that term is defined in whole or in part) to Employee within the meaning of Section 280G of the Code), as in effect at such time, no change shall be made to the Total Payments to be made in connection with the Change of Control, except that, in addition to all other amounts to be paid to Employee by Employer hereunder, Employer shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing hereunder, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the “Excess Parachute Payment” received by Employee (determined without regard to any payments made to Employee pursuant to this Section 6) and (ii) dividing the product so obtained by the amount obtained by subtracting (A) the aggregate local, state and Federal income tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code) applicable to the receipt by Employee of the “Excess Parachute Payment” (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is Employer’s intention that Employee’s net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 6, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due to the Executive under this Agreement Total Payments shall be reduced to determined by Employer’s independent auditors in accordance with the minimum extent necessary so that no portion principles of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dSections 280G(d)(3) and (4) of the Code. The calculation of the excess parachute payment is as follows: X = Y ) (1 - (A + B + C)), compounded annuallywhere X is the total dollar amount of the Tax Gross-Up Payment, or Y is the total Excise Tax imposed with respect to such Change in Control Benefit, A is the Excise Tax rate in effect at such other the time, B is the highest combined marginal federal income and applicable state income tax rate as may be required in order that no such payments shall be non-deductible effect, after taking into account the deductibility of state income taxes against federal income taxes to the Employer or extent allowable, for the Holding Companiescalendar year in which the Tax Gross-Up Payment is made, as applicable, by reason of and C is the operation of said Section 280G. To applicable Hospital Insurance (Medicare) Tax Rate in effect for the extent that there calendar year in which the Tax Gross-Up Payment is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationmade.

Excess Parachute Payment. It is In the intention event that any payment or benefit ------------------------ received or to be received by the Executive in connection with a Change of Control (whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any successor to the Company or any corporation ("Affiliate") affiliated with the Company or which becomes so affiliated pursuant to the transactions resulting in a Change of Control, both within the meaning of Section 1504 of the ExecutiveInternal Revenue Code of 1986, as amended (the Employer and "Code"), (collectively all such payments are hereinafter referred to as the Holding Companies that no payment by the Employer "Total Payments")) is deemed to be an "excess parachute payment" (in whole or for the benefit of part) to the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation a result of Section 280G and/or 4999 of the Code relating Code, no change shall be made to parachute payments. Accordinglythe Total Payments to be made in connection with the Change of Control except that, notwithstanding in addition to any other provision payment, coverage or benefit due and owing hereunder, the Company shall pay to Executive on the date on which a Change of Control occurs a cash payment equal to an amount determined by multiplying the rate of excise tax then imposed by Section 4999 by the amount of the "excess parachute payment" received by the Executive (determined without regard to any payments made to the Executive pursuant to this AgreementSection) and dividing the product so obtained by the amount obtained by subtracting the aggregate local, state and Federal income tax rate applicable to the receipt by Executive of the "excess parachute payment" (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code, it being the Company's intention that the Executive's net after tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 8, the following provisions shall apply: (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which the Executive shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account; and (ii) the value of any non-cash benefit or any deferred cash payment included in the event that it is Total Payments shall be determined by the Employer Company's independent auditors in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to accordance with the Executive, whether under this Agreement or otherwise, would constitute an “Excess Parachute Payment” principles of Sections 280G(d)(3) and (as that term is defined in Section 280G of the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement shall be reduced to the minimum extent necessary so that no portion of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d4) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is (a) Notwithstanding anything to the intention of the Executivecontrary in this Agreement, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or if any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer paid or either of the Holding Companies shall be non-deductible payable to the Employer Employee pursuant to this Agreement or any other plan, program or arrangement maintained by the Holding Companies, as applicable, by reason of Corporation or an Affiliate would constitute a “parachute payment” within the operation meaning of Section 280G of the Code relating Code, then the Employee shall receive the greater of: (i) one dollar ($1.00) less than the amount which would cause the payments and benefits to constitute a “parachute paymentspayment”; or (ii) the amount of such payments and benefits, after taking into account all federal, state and local taxes, including the excise tax imposed under Section 4999 of the Code, if such amount would be greater than the amount specified in Section 4.2(a), after taking into account all federal, state and local taxes. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that Any reduction to any payment made or pursuant to Section 4.2(a) shall be made consistent with the requirements of Section 409A of the Code. (b) All determinations required to be made or other benefit provided or under this Section 4.2 shall be made by a public accounting firm that is retained by the Corporation to be provided provide tax advice as of the date immediately prior to the Executive, whether under this Agreement Change in Control (the “Accounting Firm"). The Accounting Firm shall provide detailed supporting calculations both to the Corporation and the Employee within 15 business days of the receipt of notice from the Corporation or otherwise, would constitute an the Employee that there has been a potential “Excess Parachute Paymentparachute payment” (as that term is defined in within the meaning of Section 280G of the Code, or such earlier time as requested by the Corporation. Notwithstanding the foregoing, in the event: (i) that the Accounting Firm is precluded from performing such services under applicable auditor independence rules; or (ii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Corporation shall appoint another nationally recognized public accounting firm to be the Accounting Firm. (c) If, pursuant to Section 4.2(a), then any payment or benefit payable hereunder is required to be reduced, the aggregate amount or value of any the Severance Benefits due Accounting Firm shall provide a written opinion to the Executive under this Agreement shall be reduced Employee that: (i) such reduction is necessary in order for the Employee to the minimum extent necessary so that no portion avoid having to pay or report any excise tax pursuant to Section 4999 of the Severance Benefits made Code; and (ii) that the Employee is not required to pay or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit report any excise tax under Section 4999 of the ExecutiveCode on the Employee’s federal income tax return. (d) All fees, such Excess Parachute Payment shall be refunded to costs and expenses (including, but not limited to, the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dcosts of retaining experts) of the Code, compounded annually, or at such other rate as may be required in order that no such payments Accounting Firm shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved borne by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliatesCorporation. The determination of such partner as to by the amount to Accounting Firm shall be determined under this Section 5(d) binding upon the Corporation and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationEmployee.

Excess Parachute Payment. It Anything in this Agreement to the contrary notwithstanding, in the event that an independent accountant shall determine that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "Payment") would be nondeductible by the Company for Federal income tax purposes because of Code Section 280G or would constitute an "excess parachute payment" (as defined in Code Section 280G), then the aggregate present value of amounts payable or distributable to or for the benefit of Executive pursuant to this Agreement (such payments or distributions pursuant to this Agreement are hereinafter referred to as "Agreement Payments") shall be reduced (but not below zero) to the Reduced Amount. For purposes of this paragraph, the "Reduced Amount" shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be nondeductible by the Company because of Code Section 280G or without causing any portion of the Payment to be subject to the excise tax imposed by Code Section 4999. If the independent accountant determines that any Payment would be nondeductible by the Company because of Code Section 280G or that any portion of the Payment will be subject to the excise tax imposed by Code Section 4999, the Company shall promptly give Executive notice to that effect and a copy of the detailed calculation thereof and of the Reduced Amount. The Executive may then elect, in Executive's sole discretion, which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount), and shall advise the Company in writing of Executive's election within ten (10) days of Executive's receipt of such notice. If no such election is made by Executive within such ten-day period, the intention Company may elect which and how much of the Agreement Payments shall be eliminated or reduced (as long as after such election the aggregate present value of the Agreement Payments equals the Reduced Amount) and shall notify the Executive promptly of such election. For purposes of this paragraph, present value shall be determined in accordance with Code Section 280G(d)(4). All determinations made by the independent accountant under this Section shall be binding upon the Company and the Executive and shall be made within sixty (60) days of a termination of employment of the Executive. As promptly as practicable following such determination and the elections hereunder, the Employer and the Holding Companies that no payment by the Employer Company shall pay to or distribute to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, such amounts as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwise, would constitute an “Excess Parachute Payment” (as that term is defined in Section 280G of the Code), are then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement and shall promptly pay to or distribute for the benefit of the Executive in the future such amounts as become due to the Executive under this Agreement. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time of the initial determination by the independent accountant hereunder, it is possible that Agreement Payments will be made by the Company which should not have been made ("Overpayment") or that additional Agreement Payments which have not been made by the Company should have been made ("Underpayment"), in each case, consistent with the calculation of the Reduced Amount hereunder. In the event that the independent accountant, based upon the assertion of a deficiency by the Internal Revenue Service against the Company or the Executive which the independent accountant believes has a high probability of success, determines that an Overpayment has been made, any such Overpayment shall be reduced treated for all purposes as a loan to the minimum extent necessary so Executive which the Executive shall repay to the Company together with interest at the applicable Federal rate provided for in Code Section 7872(f)(2); provided, however, that no portion of amount shall be payable by the Severance Benefits made or other benefits provided Executive to the Executive, as so reduced, constitutes an Excess Parachute Payment. To Company if and to the extent such payment would not reduce the amount which is subject to taxation under Code Section 4999 or if the period of limitations for assessment of tax under Code Section 4999 against the Executive shall have expired. In the event that the independent accountant, based upon controlling precedent, determines that an Excess Parachute Payment Underpayment has been made occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer Executive together with interest thereon at the applicable Federal Rate determined under rate provided for in Code Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d7872(f)(2)(A), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is Anything in this Agreement to the intention of ------------------------- contrary notwithstanding, in the Executive, the Employer and the Holding Companies event that no it shall be determined that any payment or distribution by the Employer Company to or for the benefit of the Executive under this Agreement and/or any other agreement (whether paid or plan payable or distributed or distributable pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either terms of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwiseotherwise but determined without regard to any additional payments required under this Section 4.2 (e) (a "Payment") would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, would constitute an “Excess Parachute Payment” (together with any such interest and penalties, are hereinafter collectively referred to as that term is defined in Section 280G of the Code"Excise Tax"), then the aggregate 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 value penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the Payment. The Executive shall notify the Company in writing of any claim by the Severance Benefits due Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a thirty (30) day period following the date on which the Executive under this Agreement shall be reduced has given such notification to the minimum extent necessary so Company (or such shorter period ending on the date that no portion any payment of taxes with respect to such claim is required). If the Severance Benefits made or other benefits provided Company notifies the Executive in writing prior to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent expiration of such period that an Excess Parachute Payment has been made it desires to or for the benefit of the Executive, contest such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280Gclaim, the Executive shall determine which method cooperate with the Company in so contesting; provided, however, that the Company shall be followedbear and pay all costs and expenses, provided that if the Executive fails (including additional interest and penalties) incurred in connection with such contest, on an after-tax basis to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is the intention Notwithstanding any other provision of the Executivethis Agreement or of any other agreement, understanding or compensation plan, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is shall not be entitled to receive payments or benefits from the Employer or either of the Holding Companies shall any payment which, taking into account all payments, rights and benefits, would be non-deductible deemed to the Employer or the Holding Companies, as applicable, by reason of the operation of be an "excess parachute payment" under Section 280G of the Internal Revenue Code relating to parachute payments. Accordinglyof 1986, notwithstanding any other provision as amended, and the amount of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any each payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwise, would constitute an “Excess Parachute Payment” (as that term is defined in Section 280G of the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive under this Agreement shall be reduced to the minimum extent necessary so to ensure that the Executive receives no such "excess parachute payment;" provided that no portion such reduction shall occur to the extent that the Executive shall have elected to defer receipt of payments beyond the Severance Benefits dates such payments were otherwise to be made or other benefits provided to the Executive, as so reduced, constitutes such deferral shall have resulted in the present value of such payment not constituting an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit "excess parachute payment," such deferral shall otherwise comply with Section 280G of the ExecutiveInternal Revenue Code of 1986, as amended, and such Excess Parachute Payment deferral shall be refunded reasonably acceptable to the Employer with interest thereon Company. If, at any future date following the applicable Federal Rate making of a payment hereunder, it shall have been determined under Section 1274(d) by the IRS that such payment was in excess of the Code, compounded annually, or at such other rate as may be required limits set forth in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, and such excess shall not have been caused by a voluntary action of the Executive not required by this Agreement, then the Executive shall determine which method be entitled to receive from the Company, and the Company shall be followedpay to Executive promptly upon notification to the Company of such determination, provided an excise tax adjustment payment of an amount such that if after payment of all applicable U.S. federal, state and local taxes (computed at the maximum marginal rates and including interest penalties and any cost of contest or defense and including any applicable excise tax) imposed upon the excise tax adjustment payment, the Executive fails to make such determination within forty-five days (45) after retains from the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice excise tax adjustment payment an amount equal to the other, may refer excise tax imposed upon the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies payments and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationbenefits.

Excess Parachute Payment. It is Anything in this Agreement to the intention of contrary notwithstanding, in the Executive, the Employer and the Holding Companies event that no it shall be determined that any payment or distribution by the Employer Company to or for the benefit of the Executive under this Agreement and/or any other agreement (whether paid or plan payable or distributed or distributable pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either terms of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwiseotherwise but determined without regard to any additional payments required under this Section 4.2(f)) (a "Payment") would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, would constitute an “Excess Parachute Payment” (together with any such interest and penalties, are hereinafter collectively referred to as that term is defined in Section 280G of the Code"Excise Tax"), then the aggregate 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 value penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the Payment. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-Up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by or related to the Gross-Up Payment(s). The Executive shall notify the Company in writing of any claim by the Severance Benefits due Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a 30-day period following the date on which the Executive under this Agreement shall be reduced has given such notification to the minimum extent necessary so Company (or such shorter period ending on the date that no portion any payment of taxes with respect to such claim is required). If the Severance Benefits made or other benefits provided Company notifies the Executive in writing prior to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent expiration of such period that an Excess Parachute Payment has been made it desires to or for the benefit of the Executive, contest such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280Gclaim, the Executive shall determine which method cooperate with the Company in so contesting; provided, however, that the Company shall be followedbear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such contest, provided that if the Executive fails on an after-tax basis to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in In the event that it is determined by the Employer in its reasonable discretion that any payment made or benefit received or to be made or other benefit provided or to be provided received by Employee in connection with a Change of Control, whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the “Code”)) with Employer or which becomes so affiliated pursuant to the transactions resulting in a Change of Xxxxxx Xxxxxx Employment Agreement 9 Control (collectively all such payments are hereinafter referred to as the “Total Payments”), is deemed to be an “Excess Parachute Payment” (as that term is defined in whole or in part) to Employee within the meaning of Section 280G of the Code), as in effect at such time, no change shall be made to the Total Payments to be made in connection with the Change of Control, except that, in addition to all other amounts to be paid to Employee by Employer, Employer shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the “Excess Parachute Payment” received by Employee (determined without regard to any payments made to Employee pursuant to this Section 5) and (ii) dividing the product so obtained by the amount obtained by subtracting (A) the aggregate local, state and Federal income and employment tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code and the phase-out of the personal exemption) applicable to the receipt by Employee of the “Excess Parachute Payment” (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is Employer’s intention that Employee’s net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 5, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due Total Payments shall be determined by Employer’s independent auditors in accordance with the principles of Sections 280G of the Code. The calculation of the excess parachute payment is as follows: X = Y / (1 - (A + B + C)), where X is the total dollar amount of the Tax Gross-Up Payment, Y is the total Excise Tax imposed with respect to such Change in Control Benefit, A is the Excise Tax rate in effect at the time, B is the highest combined marginal federal income and applicable state income tax rate in effect, after taking into account the deductibility of state income taxes against federal income taxes to the Executive extent allowable, for the calendar year in which the Tax Gross-Up Payment is made, and C is the combined federal and state employment tax rate in effect for the calendar year in which the Tax Gross-Up Payment is made. Subject to the provisions of this Section 5, all determinations required to be made under this Agreement Section 5, including (i) whether and when a Tax Gross-Up Payment is required, (ii) the amount of such Tax Gross-Up Payment, and (iii) the assumptions to be utilized in arriving at such determination, shall be reduced made by independent auditors of Employer (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the minimum extent necessary so that no portion Employer and Employee within 15 business days of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes receipt of notice from Employee that there has been an Excess Parachute Payment, or such earlier time as is requested by Employer. To All fees and expenses of the extent Accounting Firm shall be borne solely by Employer. Any Tax Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by Employer to Employee within thirty (30) days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that an Excess Parachute no Excise Tax is payable by Employee, it Xxxxxx Xxxxxx Employment Agreement 10 shall furnish Employee with a written opinion that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon Employer and Employee. In the event that a Tax Gross-Up Payment has was not made but should have been made (“Underpayment”), and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment (including, without limitation, penalties and interest), and Employer shall promptly pay the Underpayment to or for the benefit of Employee. In the Executiveevent that a Tax Gross-Up Payment was made but should not have been made (“Overpayment”), the Accounting Firm shall determine the amount of the Overpayment and Employee shall promptly pay the Overpayment to Employer. Employee shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of the Tax Gross-Up Payment (“Gross-Up Notice”). Employee shall give Employer the Gross-Up Notice as soon as practicable, but no later than 10 business days after Employee is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date of the Gross-Up Notice (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Employee in writing prior to the expiration of such period that it desires to contest such claim, Employee shall: (i) give Employer any information reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order effectively to contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim. Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed on Employee as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5, Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any Xxxxxx Xxxxxx Employment Agreement 11 permissible manner. In the event that Employer elects to contest the tax, Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine. If Employer directs Employee to pay such claim and xxx for a refund, Employer shall advance the amount of such payment to Employee, on an interest–free basis, for any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. In the event that the Internal Revenue Service requests an extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due, such Excess Parachute Payment an extension may, at the election of Employee, be limited solely to such contested amount. Furthermore, Employer’s control of the contest shall be refunded limited to the Employer issues with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Coderespect to which a Tax Gross-Up Payment would be payable hereunder, compounded annually, or at such other rate as may be required in order that no such payments and Employee shall be non-deductible entitled to the Employer settle or the Holding Companiescontest, as applicablethe case may be, any other issue raised by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280GInternal Revenue Service or any other taxing authority. If, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the receipt by Employee of an amount advanced by Employer has sent him written notice of pursuant to Section 5, Employee becomes entitled to receive any refund with respect to such claim, Employee shall promptly pay Employer the need for such reduction, the Employer may determine the method amount of such reduction in its sole discretionrefund (together with any interest paid or credited thereon after taxes applicable thereto). If any dispute between If, after the receipt by Employee of an amount advanced by Employer and the Executive as pursuant to any of the amounts to be determined under this Section 5(d)5, or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm determination is made that Employee shall not be entitled to any refund with respect to such claim and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the independent registered public accounting firm expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Tax Gross-Up Payment to be paid. Notwithstanding anything to the contrary in this Section 5, in the event that a Tax Gross-Up Payment is made before the date on which Employee actually owes the Excise Tax, then the amount of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts payment shall be final and binding on discounted using the Employerapplicable interest rate, i.e., the Holding Companies and prime rate, used to compute the Executive. The Employer and present value of an amount at the Holding Companies shall bear same time in the costs future for purposes of any such determinationcomputing the Excise Tax.

Excess Parachute Payment. It In the event that any payment or benefit received or to be received by Employee in connection with a change of control (as that term is the intention of the Executive, the Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive defined under this Agreement and/or any other agreement or plan pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Internal Revenue Code relating to parachute payments. Accordinglyof 1986 (the “Code”)), notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided whether payable pursuant to the Executive, whether under terms of this Agreement or otherwiseany other plan, would constitute arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the Code) with Employer or which becomes so affiliated pursuant to the transactions resulting in a change of control (collectively all such payments are hereinafter referred to as the “Total Payments”), is deemed to be an “Excess Parachute Payment” (as that term is defined in whole or in part) to Employee within the meaning of Section 280G of the Code), as in effect at such time, no change shall be made to the Total Payments to be made in connection with the change of control, except that, in addition to all other amounts to be paid to Employee by Employer hereunder, Employer shall, within thirty (30) days of the date on which any Excess Parachute Payment is made, pay to Employee, in addition to any other payment, coverage or benefit due and owing hereunder, an amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the “Excess Parachute Payment” received by Employee (determined without regard to any payments made to Employee pursuant to this Section 5) and (ii) dividing the product so obtained by the amount obtained by subtracting (A) the aggregate local, state and Federal income tax rates (including the value of the loss of itemized deductions under Section 68 of the Code) applicable to the receipt by Employee of the “Excess Parachute Payment” (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code. It is Employer’s intention that Employee’s net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 5, (i) no portion, if any, of the Total Payments, the receipt or enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due to the Executive under this Agreement Total Payments shall be reduced to determined by Employer’s independent auditors in accordance with the minimum extent necessary so that no portion principles of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dSections 280G(d)(3) and (4) of the Code. The calculation of the excess parachute payment is as follows: X = Y ÷ (1 – (A + B + C)), compounded annuallywhere X is the total dollar amount of the Tax Gross-Up Payment, or Y is the total Excise Tax imposed with respect to such change in control benefit, A is the Excise Tax rate in effect at such other the time, B is the highest combined marginal federal income and applicable state income tax rate as may be required in order that no such payments shall be non-deductible effect, after taking into account the deductibility of state income taxes against federal income taxes to the Employer or extent allowable, for the Holding Companiescalendar year in which the Tax Gross-Up Payment is made, as applicable, by reason of and C is the operation of said Section 280G. To applicable Hospital Insurance (Medicare) Tax Rate in effect for the extent that there calendar year in which the Tax Gross-Up Payment is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationmade.

Excess Parachute Payment. It is In the intention event that any payment or ------------------------ benefit received or to be received by Employee in connection with a Change of Control, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the ExecutiveInternal Revenue Code of 1986, as amended (the "Code")) with Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan which becomes so affiliated pursuant to which the Executive transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the "Total Payments"), is entitled deemed to receive payments be an "Excess Parachute Payment" (in whole or benefits from in part) to Employee within the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation meaning of Section 280G of the Code relating Code, as in effect at such time, no change shall be made to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or Total Payments to be made or in connection with the Change of Control, except that, in addition to all other benefit provided or amounts to be provided paid to Employee by Employer hereunder, Employer shall, within thirty (30) days of the Executivedate on which any Excess Parachute Payment is made, whether under this Agreement pay to Employee, in addition to any other payment, coverage or otherwisebenefit due and owing hereunder, would constitute an “amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the "Excess Parachute Payment” " received by Employee (as that term is defined in determined without regard to any payments made to Employee pursuant to this Section 280G 5) and (ii) dividing the product so obtained by the --------- amount obtained by subtracting (A) the aggregate local, state and Federal income tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code), then the aggregate amount or value of any the Severance Benefits due ) applicable to the Executive under this Agreement shall be reduced to the minimum extent necessary so that no portion receipt by Employee of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an "Excess Parachute Payment. To " (taking into account the extent that an Excess Parachute Payment has been made to or deductibility for the benefit Federal income tax purposes of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dpayment of state and local income taxes thereon) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.from

Excess Parachute Payment. It is In the intention event that any payment or ------------------------ benefit received or to be received by Employee in connection with a Change of Control, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement by Employer, any predecessor or successor to Employer or any corporation affiliated (within the meaning of Section 1504 of the ExecutiveInternal Revenue Code of 1986, as amended (the "Code")) with Employer and the Holding Companies that no payment by the Employer to or for the benefit of the Executive under this Agreement and/or any other agreement or plan which becomes so affiliated pursuant to which the Executive transactions resulting in a Change of Control (collectively all such payments are hereinafter referred to as the "Total Payments"), is entitled deemed to receive payments be an "Excess Parachute Payment" (in whole or benefits from in part) to Employee within the Employer or either of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation meaning of Section 280G of the Code relating Code, as in effect at such time, no change shall be made to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or Total Payments to be made or in connection with the Change of Control, except that, in addition to all other benefit provided or amounts to be provided paid to Employee by Employer hereunder, Employer shall, within thirty (30) days of the Executivedate on which any Excess Parachute Payment is made, whether under this Agreement pay to Employee, in addition to any other payment, coverage or otherwisebenefit due and owing hereunder, would constitute an “amount determined by (i) multiplying the rate of excise tax then imposed by Code Section 4999 by the amount of the "Excess Parachute Payment” " received by Employee (as that term is defined in determined without regard to any payments made to Employee pursuant to this Section 280G 5) and (ii) dividing the product so obtained by the --------- amount obtained by subtracting (A) the aggregate local, state and Federal income tax rates (including the value of the loss of itemized deductions under Section 68 of the Internal Revenue Code) applicable to the receipt by Employee of the "Excess Parachute Payment" (taking into account the deductibility for Federal income tax purposes of the payment of state and local income taxes thereon) from (B) the amount obtained by subtracting from 1.00 the rate of excise tax then imposed by Section 4999 of the Code). It is Employer's intention that Employee's net after-tax position be identical to that which would have obtained had Sections 280G and 4999 not been part of the Code. For purposes of implementing this Section 5, then (i) no portion, if any, of the aggregate amount Total Payments, the receipt or --------- enjoyment of which Employee shall have effectively waived in writing prior to the date of payment of the Total Payments, shall be taken into account, and (ii) the value of any non-cash benefit or any deferred cash payment included in the Severance Benefits due to the Executive under this Agreement Total Payments shall be reduced to determined by Employer's independent auditors in accordance with the minimum extent necessary so that no portion principles of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent that an Excess Parachute Payment has been made to or for the benefit of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(dSections 280G(d)(3) and (4) of the Code. The calculation of the excess parachute payment is as follows: X = Y / (1 - (A + B + C)), compounded annuallywhere X is the total dollar amount of the Tax Gross-Up Payment, or Y is the total Excise Tax imposed with respect to such Change in Control Benefit, A is the Excise Tax rate in effect at such other the time, B is the highest combined marginal federal income and applicable state income tax rate as may be required in order that no such payments shall be non-deductible effect, after taking into account the deductibility of state income taxes against federal income taxes to the Employer or extent allowable, for the Holding Companiescalendar year in which the Tax Gross-Up Payment is made, as applicable, by reason of and C is the operation of said Section 280G. To applicable Hospital Insurance (Medicare) Tax Rate in effect for the extent that there calendar year in which the Tax Gross-Up Payment is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determinationmade.

Excess Parachute Payment. It is (a) Notwithstanding anything in this Agreement to the intention of the Executivecontrary, the Employer and the Holding Companies that no payment if any amount or distribution by the Employer Company to or for the benefit of the Executive under this Agreement and/or any other agreement (whether or plan not paid or distributed pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either terms of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwise) (a "Payment") would subject Executive to an excise tax under Section 4999 of the Code (such excise tax, would constitute an “Excess Parachute Payment” (together with any interest and penalties thereon, hereinafter referred to as that term is the "Excise Tax") on "excess parachute payments", as defined in Section 280G of the Code), then the aggregate amount or value of any the Severance Benefits due to the Executive amounts payable under this Agreement Section 3 shall be reduced by the smallest amount necessary to avoid the imposition of the Excise Tax. (b) The determination of whether and when an Excise Tax is payable, the amount of such Excise Tax, the amount, if any that a Payment must be reduced, and the assumptions to be utilized in arriving at such determination shall be made by Ernst & Young or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm") which shall provide detailed supporting calculations both to the minimum extent necessary so that no portion Corporation and Executive within fifteen (15) business days of the Severance Benefits made or other benefits provided to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent receipt of notice from Executive that an Excess Parachute Payment there has been made to a Payment, or such earlier time as is requested by the Corporation. In the event that the Accounting Firm is serving as accountant or auditor for an individual, entity or group effecting the benefit change in ownership or effective control (within the meaning of the Executive, such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d) 280G of the Code), compounded annually, or at such other rate Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as may the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be required in order borne solely by the Corporation. If the Accounting Firm determines that no such payments Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be non-deductible to binding upon the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280G, the Executive shall determine which method shall be followed, provided that if the Executive fails to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer Corporation and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.

Excess Parachute Payment. It is Anything in this ------------------------ Agreement to the intention of contrary notwithstanding, in the Executive, the Employer and the Holding Companies event that no it shall be determined that any payment or distribution by the Employer Company to or for the benefit of the Executive under this Agreement and/or any other agreement (whether paid or plan payable or distributed or distributable pursuant to which the Executive is entitled to receive payments or benefits from the Employer or either terms of the Holding Companies shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of Section 280G of the Code relating to parachute payments. Accordingly, notwithstanding any other provision of this Agreement, in the event that it is determined by the Employer in its reasonable discretion that any payment made or to be made or other benefit provided or to be provided to the Executive, whether under this Agreement or otherwiseotherwise but determined without regard to any additional payments required under this Section 4.2 (e) (a "Payment") would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, would constitute an “Excess Parachute Payment” (together with any such interest and penalties, are hereinafter collectively referred to as that term is defined in Section 280G of the Code"Excise Tax"), then the aggregate 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 value penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the Payment. The Executive shall notify the Company in writing of any claim by the Severance Benefits due Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a thirty (30) day period following the date on which the Executive under this Agreement shall be reduced has given such notification to the minimum extent necessary so Company (or such shorter period ending on the date that no portion any payment of taxes with respect to such claim is required). If the Severance Benefits made or other benefits provided Company notifies the Executive in writing prior to the Executive, as so reduced, constitutes an Excess Parachute Payment. To the extent expiration of such period that an Excess Parachute Payment has been made it desires to or for the benefit of the Executive, contest such Excess Parachute Payment shall be refunded to the Employer with interest thereon at the applicable Federal Rate determined under Section 1274(d) of the Code, compounded annually, or at such other rate as may be required in order that no such payments shall be non-deductible to the Employer or the Holding Companies, as applicable, by reason of the operation of said Section 280G. To the extent that there is more than one method of reducing the payments to bring them within the limitations of said Section 280Gclaim, the Executive shall determine which method cooperate with the Company in so contesting; provided, however, that the Company shall be followedbear and pay all costs and expenses, provided that if the Executive fails (including additional interest and penalties) incurred in connection with such contest, on an after-tax basis to make such determination within forty-five days (45) after the Employer has sent him written notice of the need for such reduction, the Employer may determine the method of such reduction in its sole discretion. If any dispute between the Employer and the Executive as to any of the amounts to be determined under this Section 5(d), or the method of calculating such amounts, cannot be resolved by the Employer and the Executive, either the Employer or the Executive after giving three (3) days written notice to the other, may refer the dispute to a partner in the Boston office of a firm of nationally recognized independent certified public accountants selected jointly by the Employer, the Holding Companies and the Executive, which firm shall not be the independent registered public accounting firm of the Employer or any its successors or affiliates. The determination of such partner as to the amount to be determined under this Section 5(d) and the method of calculating such amounts shall be final and binding on the Employer, the Holding Companies and the Executive. The Employer and the Holding Companies shall bear the costs of any such determination.