Common use of Excise Tax Matters Clause in Contracts

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. an amount equal to the lesser of (i) U.S.$1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 15, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 15, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 15, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. in an amount equal to the lesser of (i) U.S.$1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”” ), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 159, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 159, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c9(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c9(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 159, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c9(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c9(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company Employer to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then the amount of the Payments to which the Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. an amount equal shall be reduced to the lesser of (i) U.S.$1,000,000 extent, and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal only to the Excise Tax imposed upon extent, that such excise tax shall not apply, unless it is determined that the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that benefit to the Employee would be entitled to retain upon his receipt greater if such reduction did not occur. Notwithstanding the provisions of Section 10(b), the Gross-Up specific Payment or Payments that are reduced, and the order and amount of reduction from each such Payment, then shall be determined by the Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amountin his discretion. (b) All determinations required to be made under this Section 1510, including whether and when a Gross-Up Payment reduction is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) reduction and the assumptions not specified herein to be utilized used in arriving at such determinationdeterminations, shall be made by a nationally recognized accounting law firm appointed selected by the Company and Employee that is reasonably acceptable to the Employee Company (the “Accounting Law Firm”) which ). Such determination shall be made within thirty business days after request therefor by notice from the Employee to such firm and to the Employer. The Law Firm shall provide detailed supporting calculations with respect to its determination both to the Company Employer and the Employee within ten such thirty business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal ratesday period. All fees and expenses of the Accounting Law Firm shall be borne solely by the CompanyEmployer. Any Gross-Up Payment, as determined pursuant to this Section 15, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c) hereof, any determination by the Accounting Law Firm shall be final, binding and conclusive upon the Company Employer and the Employee, except as provided in the following sentences of this Section 10(b). As a result of the uncertainty in the application of Section 4999 of the CodeCode at the time of the initial determination by the Law Firm hereunder, it is possible that the amount of the Gross-Up Payment determined reductions which will not have been made by the Accounting Firm to be due to Employer should have been made (“Overpayment”) or on behalf of) Employee was lower than that reductions which have been made by the amount actually due Employer should not have been made (“Underpayment”), consistent with the calculations required to be made hereunder. Either party hereto can request a redetermination by the Law Firm. In the event that the Company exhausts its remedies pursuant to Section 15(c) and Employee thereafter is required to make a payment of any Excise TaxLaw Firm determines that an Underpayment has occurred, the Accounting Law Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment Underpayment, which shall be promptly paid by the Company Employer to or for the benefit of the Employee. (c) Employee shall notify . In the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, event that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on Law Firm determines that an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c)Overpayment has occurred has occurred, the Company Law Firm shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 15, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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, determine the amount of the Gross-Up Payment required Overpayment, which shall be promptly repaid by the Employee to be paidthe Employee.

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. in an amount equal to the lesser of (i) U.S.$1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”Amount “ ), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 157, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 157, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c7(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c7(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c7(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 157, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c7(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c7(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. in an amount equal to the lesser of (i) U.S.$1,000,000 $1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”” ), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 159, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 159, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c9(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c9(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c9(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 159, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c9(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c9(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. in an amount equal to the lesser of (i) U.S.$1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 1510, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 1510, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 15, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.when

Excise Tax Matters. (a) Anything in this Amended Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Amended Agreement or otherwise (a “Payment”), would be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the United States Internal Revenue Code (the “Code”), then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in. in an amount equal to the lesser of (i) U.S.$1,000,000 $1,000,000 and (ii) the amount necessary such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments; provided that, in the event it shall be determined that, if in lieu of receiving the Gross-Up Payment, the Employee would, if the amounts constituting “parachute payments” for purposes of Section 280G of the Code which would otherwise be payable to the Employee were reduced (as so reduced, the “Reduced Amount”” ), be entitled to receive and retain, on a net after-tax basis, an amount that is greater than the amount, on a net after-tax basis, that the Employee would be entitled to retain upon his receipt of the Gross-Up Payment, then Employee shall not be entitled to the Gross-Up Payment but rather shall only be entitled to the Reduced Amount. (b) All determinations required to be made under this Section 1516, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment (or whether there will be a Reduced Amount and the amount of such Reduced Amount) and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm appointed by the Company and reasonably acceptable to the Employee (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Employee within ten business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Employee shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rates applicable to individuals in the state or locality of Employee’s residence and/or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 1516, shall be paid by the Company to Employee five days prior to when due (or to the appropriate taxing authority on Employee’s behalf when due). If the Accounting Firm determines that no Excise Tax is payable by Employee or that the Reduced Amount will apply, it shall so indicate to Employee in writing. Subject to the following sentence and Section 15(c16(c) hereof, any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Employee was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 15(c) and Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee. (c) Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise the Company 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 thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Employee prior to the expiration of such period that it desires to contest such claim, Employee shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Employee to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (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; provided, further, that if Employee is required to extend the statute of limitations to enable the Company to contest such claim, Employee may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Employee of an amount paid or advanced by the Company pursuant to this Section 15, Employee becomes entitled to receive any refund with respect to a Gross-Up Payment, Employee shall (subject to the Company’s complying with the requirements of Section 15(c)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to Section 15(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty 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 the Gross-Up Payment required to be paid.