Common use of EXCISE TAX GROSS Clause in Contracts

EXCISE TAX GROSS. Up ------------------- (a) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, distribution (or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to the Executive or for his benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the "Payment") would be subject, in whole or in part, to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the "Excise Tax"), then the Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment") in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax, self employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 7 and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (b) All determinations required to be made under this Section 7, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide the Executive, Adecco and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ninety (90) days after the Effective Time. For the purposes of this Section 7, the "Accountants" shall mean PriceWaterhouseCoopers. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 days after the receipt by the Executive of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 7 (an "Overpayment" or "Underpayment," respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive. In the event that the Company exhausts its remedies pursuant to Section 7 ( c ) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to or for the Executive's benefit; and

EXCISE TAX GROSS. Up -------------------UP (a) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any paymentpayment or distribution made, distribution (or benefit provided (includingprovided, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) by Atlas to the Executive or for his the benefit of the Employee (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 5.1) (the a "Payment") would be subject, in whole or in part, subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended and then in effect (the "Code") (or any similar excise tax) or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive Employee shall be entitled to receive from the Company an additional payment (the a "Gross-Up Payment") in an amount such that after payment by the net amount of the Payment and the Gross-Up Payment retained by Executive after the calculation and deduction Employee of all Excise Taxes Federal, state, local or other taxes (including any interest or penalties imposed with respect to any such taxes) on the Payment ), including, without limitation, any such income taxes (and all federal, state and local income tax, employment tax, self employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on the Gross-Up Payment provided for in this Section 7 and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be the Employee retains an amount of the Gross-Up Payment equal to the Payment;Excise Tax imposed upon the Payments. (b) All Subject to the provisions of paragraph (c) of this Section 5.1, all determinations required to be made under this Section 75.1, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be used utilized in arriving at such determinations determination, shall be made by the Accountants Arthxx Xxxexxxx (as defined belowxxe "Accounting Firm") which shall provide the Executive, Adecco and the Company with detailed supporting calculations with respect both to Atlas and the Employee within 20 calendar days of the receipt of written notice from the Employee that there has been a Payment, 13 -13- or such Gross-Up Payment within ninety (90) days after earlier time as is requested by Atlas. In the Effective Time. For event that the purposes of this Section 7Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change in control, the "Accountants" Employee shall mean PriceWaterhouseCoopershave the right by written notice to Atlas to appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). For purposes of determining the amount All fees and expenses of the Accounting Firm shall be borne solely by Atlas and shall be paid by Atlas upon demand of the Employee as incurred or billed by the Accounting Firm. Any Gross-Up Payment, Executive shall be deemed as determined pursuant to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be madethis Section 5.1, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by Atlas to the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 Employee within five days after of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive Employee, it shall furnish the Employee with an unqualified written opinion in form and substance satisfactory to the Employee that failure to report the Excise Tax on the Employee's applicable federal income tax return would not result in the imposition of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes of withholding on amounts payable under this Agreementa negligence or similar penalty. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount that is greater or less than the Company made by Atlas should have paid pursuant to this Section 7 been made (an "Overpayment" or "Underpayment," respectively"), consistent with the calculations required to be made hereunder. In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive. In the event that the Company Atlas exhausts its remedies pursuant to described in paragraph (c) of this Section 7 ( c ) 5.1 and the Executive Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Atlas to or for the Executivebenefit of the Employee within five days of the receipt of the Accounting Firm's benefitdetermination. All determinations made by the Accounting Firm in connection with any Gross-Up Payment or Underpayment shall be final and binding upon Atlas and the Employee. (c) The Employee shall notify Atlas in writing of any claim asserted in writing by the Internal Revenue Service to the Employee that, if successful, would require the payment by Atlas of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than 60 days after the Employee is informed in writing of such claim and shall apprise Atlas of the nature of such claim and the date on which such claim is requested to be paid. The Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Atlas (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Atlas notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall at Atlas' expense: (i) give Atlas any information reasonably requested by Atlas relating to such claim, (ii) take such action in connection with contesting such claim as Atlas 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 Atlas, (iii) cooperate with Atlas in good faith in order effectively to contest such claim, and (iv) permit Atlas to participate in any proceedings relating to such claim; provided, however, that Atlas shall bear and pay directly as incurred all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax or any Federal, state, local or other income or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5.1, Atlas shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative (d) If, after the receipt by the Employee of an amount advanced by Atlas pursuant to paragraph (c) of this Section 5.1, the Employee becomes entitled to receive any refund with respect to such claim, the Employee shall (subject to Atlas' complying with the requirements of paragraph (ii) of this Section 5.1) promptly pay to Atlas the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto) upon receipt thereof. If, after the receipt by the Employee of an amount advanced by Atlas pursuant to paragraph (c) of this Section 5.1, a determination is made that the Employee shall not be entitled to any refund with respect to such claim and Atlas does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

EXCISE TAX GROSS. Up ------------------- If Executive becomes entitled to one or more payments (a) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any with a "payment, distribution (or benefit provided (" including, without limitation, the acceleration vesting of any paymentan option or other non-cash benefit or property), distribution or benefit and the acceleration of exercisability of any stock option) to the Executive or for his benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise any other plan, arrangement, or agreement with the Company or any affiliated company (the "PaymentTotal Payments") would be subject), in whole which are or in part, become subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), then the Executive shall be entitled to receive from the Company shall pay to Executive at the time specified below an additional payment amount (the "Gross-Up Payment") (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in an amount respect of such Excise Tax) such that the net amount of the Payment and the Gross-Up Payment retained by Executive Executive, after the calculation and deduction of all reduction for any Excise Taxes Tax (including any penalties or interest or penalties imposed with respect to such taxesthereon) on the Payment Total Payments and all any federal, state and local income tax, employment tax, self or employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in by this Section 7 and taking into account 11, but before reduction for any lost federal, state, or reduced local income or employment tax deductions on account of the Gross-Up PaymentTotal Payments, shall be equal to the Payment; sum of (a) the Total Payments, and (b) All determinations required an amount equal to be made under this Section 7the product of any deductions disallowed for federal, including whether and when state, or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is required to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Gross-Up PaymentExcise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the assumptions to be used in arriving at such determinations meaning of Section 280G(b)(1) of the Code shall be made treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Accountants Company and reasonably acceptable to Executive, the Total Payments (as defined belowin whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall provide be treated as subject to the Executive, Adecco Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Company with detailed supporting calculations with respect to such Gross-Up Payment within ninety (90) days after the Effective Time. For the purposes of this Section 7, the "Accountants" shall mean PriceWaterhouseCoopersCode. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed (i) to pay Federal federal income taxes at the applicable highest marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and made; (ii) to pay any applicable state and local income taxes at the applicable highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state or and local taxes if paid in such year (determined with without regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable; and (iii) to have otherwise allowable deductions for federal, any Gross-Up Payment with respect state, and local income tax purposes at least equal to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 days after the receipt by the Executive those disallowed because of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes inclusion of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 7 (an "Overpayment" or "Underpayment," respectively)in Executive's adjusted gross income. In the event that the Gross-Up Payment Excise Tax is subsequently determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially taken into account hereunder at the time the Gross-Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by the Accountants, Executive) the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has that would not have been paid to any Federalif such Excise Tax had been applied in initially calculating the Gross-Up Payment, state or local tax authority, repayment thereof shall not be required until actual refund or credit plus interest on the amount of such portion has been made to repayment at the Executiverate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to Section 7 ( c ) and exceed the Executive amount taken into account hereunder at the time the Gross-Up Payment is required to make a payment made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-Up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Underpayment Company shall pay to Executive on such day an estimate, as determined by the Independent Advisors, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as the amount thereof can be promptly paid determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is made, the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or for forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the ExecutiveCompany's benefit; andcontrol over any such proceedings shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-Up Payment hereunder.

EXCISE TAX GROSS. Up -------------------UP (a) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any paymentpayment or distribution made, distribution (or benefit provided (includingprovided, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) by Atlas to the Executive or for his the benefit of the Employee (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 5.1) (the a "Payment") would be subject, in whole or in part, subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code code of 1986, as amended and then in effect (the "Code") (or any similar excise tax) or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive Employee shall be entitled to receive from the Company an additional payment (the a "Gross-Up Payment") in an amount such that after payment by the net amount of the Payment and the Gross-Up Payment retained by Executive after the calculation and deduction Employee of all Excise Taxes Federal, state, local or other taxes (including any interest or penalties imposed with respect to any such taxes) on the Payment ), including, without limitation, any such income taxes (and all federal, state and local income tax, employment tax, self employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on the Gross-Up Payment provided for in this Section 7 and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be the Employee retains an amount of the Gross-Up Payment equal to the Payment;Excise Tax imposed upon the Payments. (b) All Subject to the provisions of paragraph (c) of this Section 5.1, all determinations required to be made under this Section 75.1, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be used utilized in arriving at such determinations determination, shall be made by the Accountants Arthxx Xxxexxxx (as defined belowxxe "Accounting Firm") which shall provide the Executive, Adecco and the Company with detailed supporting calculations with respect both to Atlas and the Employee within 20 calendar days of the receipt of written notice from the Employee that there has been a Payment, or such Gross-Up Payment within ninety (90) days after earlier time as is requested by Atlas. In the Effective Time. For event that the purposes of this Section 7Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the "Accountants" Employee shall mean PriceWaterhouseCoopershave the right by written notice to Atlas to appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). For purposes of determining the amount All fees and expenses of the Accounting Firm shall be borne solely by Atlas and shall be paid by Atlas upon demand of the Employee as incurred or billed by the Accounting Firm. Any Gross-Up Payment, Executive shall be deemed as determined pursuant to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be madethis Section 5.1, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by Atlas to the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 Employee within five days after of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive Employee, it shall furnish the Employee with an unqualified written opinion in form and substance satisfactory to the Employee that failure to report the Excise Tax on the Employee's applicable federal income tax return would not result in the imposition of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes of withholding on amounts payable under this Agreementa negligence or similar penalty. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount that is greater or less than the Company made by Atlas should have paid pursuant to this Section 7 been made (an "Overpayment" or "Underpayment," respectively"), consistent with the calculations required to be made hereunder. In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive. In the event that the Company Atlas exhausts its remedies pursuant to described in paragraph (c) of this Section 7 ( c ) 5.1 and the Executive Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Atlas to or for the Executivebenefit of the Employee within five days of the receipt of the Accounting Firm's benefitdetermination. All determinations made by the Accounting Firm in connection with any Gross-Up Payment or Underpayment shall be final and binding upon Atlas and the Employee. (c) The Employee shall notify Atlas in writing of any claim asserted in writing by the Internal Revenue Service to the Employee that, if successful, would require the payment by Atlas of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than 60 days after the Employee is informed in writing of such claim and shall apprise Atlas of the nature of such claim and the date on which such claim is requested to be paid. The Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to Atlas (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Atlas notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall at Atlas' expense: (i) give Atlas any information reasonably requested by Atlas relating to such claim, (ii) take such action in connection with contesting such claim as Atlas shall reasonably requesting writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Atlas, (iii) cooperate with Atlas in good faith in order effectively to contest such claim, and (iv) permit Atlas to participate in any proceedings relating to such claim; provided, however, that Atlas shall bear and pay directly as incurred all costs and expenses (including additional interest and penalties) incurred in connection with such contest and (d) If, after the receipt by the Employee of an amount advanced by Atlas pursuant to paragraph (c) of this Section 5.1, the Employee becomes entitled to receive any refund with respect to such claim, the Employee shall (subject to Atlas' complying with the requirements of paragraph (ii) of this Section 5.1) promptly pay to Atlas the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto) upon receipt thereof. If, after the receipt by the Employee of an amount advanced by Atlas pursuant to paragraph (c) of this Section 5.1, a determination is made that the Employee shall not be entitled to any refund with respect to such claim and Atlas does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, the such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

EXCISE TAX GROSS. Up UP ------------------- (a) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, distribution (or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to the Executive or for his benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the "Payment") would be subject, in whole or in part, to the excise tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the "Excise Tax"), then the Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment") in an amount such that the net amount of the Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax, self employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 7 and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (b) All determinations required to be made under this Section 7, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide the Executive, Adecco and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ninety (90) days after the Effective Time. For the purposes of this Section 7, the "Accountants" shall mean PriceWaterhouseCoopers. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the reduction in federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 days after the receipt by the Executive of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 7 (an "Overpayment" or "Underpayment," respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive. In the event that the Company exhausts its remedies pursuant to Section 7 ( c 7(c) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to or for the Executive's benefit; and

EXCISE TAX GROSS. Up -------------------UP PAYMENT: --------------------------- (a) Anything in this Agreement Notwithstanding anything herein to the contrary notwithstandingcontrary, if it shall be is determined that any payment, distribution (or benefit provided (including, without limitation, the acceleration of any payment, distribution or benefit and the acceleration of exercisability of any stock option) to the Executive or for his benefit (whether paid or payable or distributed or distributable) pursuant to payment and/or other compensation under the terms of this Agreement or otherwise (the "Payment") would be subject, in whole or in part, subject to the excise tax imposed by section Section 4999 and/or Section 280 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties should be assessed with respect to such excise tax (the such excise tax, together with any interest or penalties thereon, is herein referred to as an "Excise Tax"), then the Executive shall be entitled to receive from the Company an additional cash payment (the a "Gross-Up Payment") in an amount that will place Executive in the same after-tax economic position that Executive would have enjoyed if the Excise Tax had not applied to such that the net payment and/or other compensation. The amount of the Payment and the Gross-Up Payment retained shall be determined by an accounting firm selected by the Executive after in his sole discretion (the calculation and deduction of all "Accounting Firm") in accordance with such formula as the Accounting Firm deems appropriate. No Gross-Up Payments shall be payable hereunder if the Accounting Firm determines that the payments and/or other compensation are not subject to an Excise Taxes Tax. The Accounting Firm shall be paid by the Company (or any successor thereto) for services performed hereunder. (b) All determinations required under this Section 10, including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax, self employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the whether a Gross-Up Payment provided for in this Section 7 is required, the amount of the payment and/or other compensation constituting excess parachute payments, and taking into account any lost or reduced tax deductions on account the amount of the Gross-Up Payment, shall be equal made by the Accounting Firm, which shall provide detailed supporting calculations to both Executive and the Payment; Company within fifteen (b15) All determinations required to be made days of any date reasonably requested by the Executive on which a determination under this Section 710 is necessary or advisable. The Company shall pay to the Executive, including whether and when in cash, subject to any applicable tax withholding requirements, the Gross-Up Payment within fifteen (15) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is required and payable by Executive, the amount of such Gross-Up Payment, and Company agrees that the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which Accounting Firm shall provide the Executive with an opinion that the Accounting Firm, having substantial authority under the Code and other tax regulations and based on its judgement and an assessment of the facts, does not believe the Executive will have to report an Excise Tax on the Executive, Adecco 's federal income tax return. Any determination by the Accounting Firm shall be binding upon the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ninety (90or any successor thereto). (c) days after In the Effective Time. For event that it is finally determined by the purposes of this Section 7Internal Revenue Service on audit or in a judicial proceeding that the Executive is liable for any Excise Tax in an amount other than that determined by the Accounting Firm, the "Accountants" shall mean PriceWaterhouseCoopers. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment shall be recomputed by the Accounting Firm based on the Excise Tax that is finally determined to be made and to pay due. The Executive shall refund any applicable state and local income taxes resulting overpayment (together with interest at the prevailing short-term applicable marginal federal rate under section 1274 of taxation for the calendar year in which Code) and the payer of the original Gross-Up Payment is shall pay to be made, net the Executive any resulting shortfall (together with interest at the short-term applicable federal rate under section 1274 of the reduction Code), promptly following such recomputation. The Company shall indemnify the Executive against any costs and expenses (including the reasonable fees of attorneys and accountants) incurred in federal income taxes connection with any audit or examination of, or legal proceedings in connection with, his tax return for any taxable year for which could be obtained from an Excise Tax is, or is alleged to be, due, to the deduction extent attributable to the issue of such state or local taxes if paid in such year (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 30 days after the receipt by the Executive of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and the Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 7 (an "Overpayment" or "Underpayment," respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount initially determined by the Accountants, the Executive shall promptly repay the Overpayment to the Company; provided, however, that in the event any portion of the Gross-Up Payment to be repaid to the Company has been paid to any Federal, state or local tax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive. In the event that the Company exhausts its remedies pursuant to Section 7 ( c ) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to or for the Executive's benefit; and.