Common use of Excise Tax Payments Clause in Contracts

Excise Tax Payments. (i) Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive 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 Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive 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 Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Excise Tax Payments. (ia) Anything Notwithstanding anything contained in this Agreement to the contrary notwithstanding and except as set forth belowwithout regard to whether the Executive’s employment with the Company has terminated, if it is determined in the event that any payment or distribution by benefit (within the Company meaning of Section 280G(b) (2) of the Internal Revenue Code of 1986, as amended (the “Code”), to the Executive or for the benefit of Executive (his benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise in connection with, but determined without regard to any additional payments required under this Section 5) or arising out of, his employment with the Company or a change in ownership or effective control of the Company or of a substantial portion of its assets (a “Payment” or “Payments”) ), would be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Executive 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 shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxestaxes and the Excise Tax), includingincluding any Excise Tax, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i); provided, however, if it is determined the Executive’s Payments do not exceed 105% of the largest amount that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account would result in no portion of the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount Excise Tax (the “Reduced Safe Harbor Amount”) such that the receipt of Payments would not give rise to any Excise Tax), then no Gross-Up Payment this subsection (a) shall be made to Executive not apply and the Payments, in the aggregate, Payments shall be reduced so that the amount of the Payments shall be equal to the Reduced Safe Harbor Amount, provided, further, that the Executive shall elect which non-cash or cash Payments shall be reduced so that the Payments equal the Safe Harbor Amount.

Excise Tax Payments. (i) Anything in this Agreement to the contrary ------------------- notwithstanding and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive 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 Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by Executive 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 Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Excise Tax Payments. (i) Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive 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 Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by Executive 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 Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Excise Tax Payments. (ia) Anything Notwithstanding anything contained in this Agreement to the contrary notwithstanding and except as set forth belowwithout regard to whether the Executive’s employment with the Company has terminated, if it is determined in the event that any payment or distribution by benefit (within the Company meaning of Code Section 280G(b) (2)), to the Executive or for the benefit of Executive (his benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise in connection with, but determined without regard to any additional payments required under this Section 5) or arising out of, his employment with the Company or a change in ownership or effective control of the Company or of a substantial portion of its assets (a “Payment” or “Payments”) ), would be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Executive 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 shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxestaxes and the Excise Tax), includingincluding any Excise Tax, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i); provided, however, if it is determined the Executive’s Payments do not exceed 105% of the largest amount that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account would result in no portion of the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount Excise Tax (the “Reduced Safe Harbor Amount”) such that the receipt of Payments would not give rise to any Excise Tax), then no Gross-Up Payment this subsection (a) shall be made to Executive not apply and the Payments, in the aggregate, Payments shall be reduced so that the amount of the Payments shall be equal to the Reduced Safe Harbor Amount, provided, further, that the Executive shall elect which non-cash or cash Payments shall be reduced so that the Payments equal the Safe Harbor Amount.

Excise Tax Payments. (i) Anything in this Agreement to 7.1 In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by benefit (within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)), paid or payable to the Executive or for his benefit or distributed pursuant to the terms of this Agreement or otherwise in connection with, or arising out of, his employment with the Company to or for the benefit of Executive (and whether paid or payable or distributed or distributable pursuant to during the terms term of this Agreement his employment or otherwise, but determined without regard to any additional payments required under this Section 5) otherwise (a “Payment” or “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred become payable by the Executive 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 shall will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed by reason of the Executive’s failure to file timely a tax return or pay taxes shown as due on his return, or imposed with respect to such taxestaxes and the Excise Tax), including, without limitation, including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding ; provided, in no event shall the foregoing provisions of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination amount of the Gross-Up Payment and a reduction exceed an amount equal to 100% of the PaymentsExecutive’s Base Salary and Target Incentive Bonus in effect at the Date of Termination; provided further, for purposes of the immediately preceding proviso, any reduction in the aggregateExecutive’s Base Salary or Target Incentive Bonus that results in Executive’s termination for Good Reason, or that would entitle Executive to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregateterminate for Good Reason, shall be reduced to the Reduced Amountdisregarded.

Excise Tax Payments. (i) Anything 5.1 Notwithstanding anything contained in this Agreement to the contrary notwithstanding and except as set forth belowcontrary, if it is determined to the extent that any payment or distribution by benefit (within the Company meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")) to Executive or for the benefit of Executive (whether Executive's benefit, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise in connection with, but determined without regard to any additional payments required under this Section 5) or arising out of, Executive's employment with the Company or a Change in Control (a “"Payment”) " or "Payments"), would be subject to the excise tax imposed by under Code Section 4999 of the Code4999, or any interest or penalties are incurred by Executive 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 Executive the Payments shall be entitled to receive an additional payment reduced (a “Gross-Up Payment”but not below zero) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (if and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i), if it is determined extent that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account reduction in the Payments and the Gross-Up Paymentwould result in Executive retaining a larger amount, would not receive a net on an after-tax benefit of at least $50,000 basis (taking into account both income taxes federal, state and local income, employment and any other applicable taxes in addition to the Excise Tax) ), than if Executive received all of the Payments (any such reduced amount is hereinafter referred to as compared the "Limited Payment Amount"). Unless Executive shall have given written notice prior to the net after-tax proceeds Determination (as hereinafter defined) specifying a different order to Executive resulting from an elimination the Company to effectuate the Limited Payment Amount, the Company shall reduce or eliminate the Payments by (i) first reducing or eliminating those Payments which have a "parachute payment" value (as determined under Code Section 280G and the regulations promulgated thereunder) equal to the value of the Gross-Up Payment Payment, and a reduction then (ii) those Payments in the order in which their "parachute payment" value comes the closest to the value of the PaymentsPayment, in and then (iii) notwithstanding the aggregateforegoing provisions, any employee benefits provided pursuant to an amount (Section 3.1(b)(iii) of this Agreement. Any notice given by Executive pursuant to the “Reduced Amount”) such that preceding sentence shall take precedence over the receipt provisions of Payments would not give rise any other plan, arrangement or agreement governing Executive's rights and entitlements to any Excise Tax, then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountbenefits or compensation.

Excise Tax Payments. (iii) Anything in If any payments or benefits due to the Employee under this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that and/or under any payment other plan or distribution by program of the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “Payment”) would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to and if the amount of the Employee's parachute payments (as defined in Section 280G(b)(2) of the Code) taken into account for the purposes of such excise tax Excise Tax does not exceed 330% of the Employee's base amount (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as defined in Section 280G(b)(3) of the “Excise Tax”Code), then Executive the payments or benefits which are subject to the Excise Tax shall be entitled adjusted until the amount of such parachute payments equals 299% of such base amount. The adjustments shall be made in such manner, and to receive such payments or other benefits, as the Employee and the Company shall mutually agree. (ii) If any payments or benefits due to the Employee under this Agreement and/or under any other plan or program of the Company would be subject to the Excise Tax, and if the amount of the Employee's parachute payments (as defined in Section 280G(b)(2) of the Code) taken into account for the purposes of such Excise Tax exceeds 330% of the Employee's base amount (as defined in Section 280G(b)(3) of the Code), the Company shall pay to the Employee an additional payment amount (a “the "Gross-Up Payment”") in an so that the net amount such that is retained by the Employee, after payment by Executive the deduction of all the Excise Tax and any other 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 theretoExcise Taxes) and Excise Tax that are imposed upon the Gross-Up Payment, Executive retains an amount Payment (other than interest and penalties imposed by reason of the Gross-Up Payment Employee's failure to file a timely tax return or pay taxes shown as due on his return), is equal to the payments and other benefits the Employee would have retained in the absence of the Excise Tax imposed upon Tax. For the Payments. Notwithstanding the foregoing provisions purpose of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and calculating the Gross-Up Payment, would not receive a net after-the Employee's tax benefit rate will be deemed to be the highest marginal rate of at least $50,000 (taking into account both federal individual income tax, plus the highest marginal rates of state, local and/or foreign individual income taxes in the state and locality or foreign jurisdiction of the Employee's residence (net of the reduction in federal income taxes which could be obtained from any Excise Tax) as compared deduction or credit attributable to the net after-tax proceeds to Executive resulting from an elimination of state, local or foreign taxes), that are in effect for the calendar year in which the Gross-Up Payment is to be made. (iii) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and a reduction the amount of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made at the Company's expense by an accounting firm selected by the Company and reasonably acceptable to Executive the Employee which is designated as one of the five largest accounting firms in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and the PaymentsEmployee within five days of the date of termination of the Employee's employment, in if applicable, or at such other time as may be requested by the aggregateCompany or the Employee (provided the Employee reasonably believes that she may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with an opinion to that effect which is reasonably acceptable to the Employee. Within ten days of the delivery of the Determination to the Employee, the Employee shall have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this paragraph (d), shall be reduced paid by the Company to the Reduced Amount.Employee within five days of the receipt of the Determination. The existence of the Dispute shall not in any way affect the Employee's right to receive the Gross-Up Payment in accordance with the Determination. Upon the final resolution of a Dispute, the Company shall promptly pay to the Employee any additional

Excise Tax Payments. (i) Anything in this Agreement to In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by benefit (within the Company meaning of Section 280G(b)(2) of the Code, to the Employee or for the his benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise in connection with, but determined without regard to any additional payments required under this Section 5) or arising out of, his employment with the Company or a change in ownership or effective control of CFI or of a substantial portion of its assets (a “Payment” or “Payments”) ), would be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by Executive 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 Executive shall the Employee will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive the Employee of all taxes (including any interest or penalties, other than interest and penalties imposed by reason of the Employee’s failure to file timely a tax return or pay taxes shown due on his return, imposed with respect to such taxestaxes and the Excise Tax), including, without limitation, including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Subsection 5(i), if it is determined that Executive is entitled 6 (ii) An initial determination as to whether a Gross-Up Payment, but that Executive, after taking into account the Payments Payment is required pursuant to this Agreement and the Gross-Up Payment, would not receive a net after-tax benefit amount of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made at the Company’s expense by an accounting firm selected by the Company and reasonably acceptable to Executive the Employee which is designated as one of the four largest accounting firms in the United States (the “Accounting Firm”). The Accounting Firm shall provide its determination (the “Determination”), together with detailed supporting calculations and documentation to the Company and the Employee within five days of the Termination Date if applicable, or such other time as requested by the Company or by the Employee (provided the Employee reasonably believes that any of the Payments may be subject to the Excise Tax) and if the Accounting Firm determines that no Excise Tax is payable by the Employee with respect to a Payment or Payments, in it shall furnish the aggregateEmployee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Within ten days of the delivery of the Determination to the Employee, the Employee shall have the right to dispute the Determination (the “Dispute”). The Gross-Up Payment, if any, as determined pursuant to this Section 12(i)(ii) shall be reduced paid by the Company to the Reduced AmountEmployee within five days of the receipt of the Accounting Firm’s determination. The existence of the Dispute shall not in any way affect the Employee’s right to receive the Gross-Up Payment in accordance with the Determination. Upon the final resolution of a Dispute, the Company shall promptly pay to the Employee any additional amount required by such resolution. If there is no Dispute, the Determination shall be binding, final and conclusive upon the Company and the Employee. 12.

Excise Tax Payments. (i) Anything in this Agreement to In the contrary notwithstanding and except as set forth below, if event that it is shall be determined that any payment or distribution by in the Company nature of compensation (within the meaning of section 280G(b)(2) of the Code) to or for the benefit of Executive (Your benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of section 280G of the Code, the aggregate present value of the Payments under the Agreement shall be reduced (but not below zero) to the Reduced Amount (defined below), provided that the reduction shall be made only if the Accounting Firm (described below) determines that the reduction will provide You with a greater net after-tax benefit than would no reduction. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Payments under this Agreement without causing any Payment under this Agreement to be subject to the Excise Tax (defined below), determined in accordance with section 280G(d)(4) of the Code. The term “Excise Tax” means the excise tax imposed by Section under section 4999 of the Code, or any interest or penalties are incurred by Executive 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 Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive 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 Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount excise tax. Unless You shall have elected another method of the Gross-Up Payment equal reduction by written notice to UBL prior to the Excise Tax imposed upon Change in Control, UBL shall reduce the Payments under this Agreement by first reducing Payments that are not payable in cash and then by reducing cash Payments. Notwithstanding the foregoing provisions of Only amounts payable under this Subsection 5(i), if it is determined that Executive is entitled Agreement shall be reduced pursuant to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared this Section 10. All determinations to be made under this Section 10 shall be made by an independent certified public accounting firm selected by UBL immediately prior to the net after-tax proceeds to Executive resulting from an elimination Change of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount Control (the “Reduced AmountAccounting Firm”), which shall provide its determinations and any supporting calculations both to UBL and to You within ten (10) days of the Change in Control. Any such that determination by the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment Accounting Firm shall be made binding upon UBL and You. All of the fees and expenses of the Accounting Firm in performing the determinations referred to Executive and the Payments, in the aggregate, Section 10 shall be reduced to the Reduced Amountborne solely by UBL.

Excise Tax Payments. (i) Anything in If any payments or benefits due to the Employee under this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that and/or under any payment other plan or distribution by program of the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “Payment”) would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to and if the amount of the Employee's parachute payments (as defined in Section 280G(b) (2) of the Code) taken into account for the purposes of such excise tax Excise Tax does not exceed 330% of the Employee's base amount (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as defined in Section 280G(b)(3) of the “Excise Tax”Code), then Executive the payments or benefits which are subject to the Excise Tax shall be entitled adjusted until the amount of such parachute payments equals 299% of such base amount. The adjustments shall be made in such manner, and to receive such payments or other benefits, as the Employee and the Company shall mutually agree. (ii) If any payments or benefits due to the Employee under this Agreement and/or under any other plan or program of the Company would be subject to the Excise Tax, and if the amount of the Employee's parachute payments (as defined in Section 280G(b)(2) of the Code) taken into account for the purposes of such Excise Tax exceeds 330% of the Employee's base amount (as defined in Section 280G(b)(3) of the Code), the Company shall pay to the Employee an additional payment amount (a “the "Gross-Up Payment”") in an so that the net amount such that is retained by the Employee, after payment by Executive the deduction of all the Excise Tax and any other 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 theretoExcise Taxes) and Excise Tax that are imposed upon the Gross-Up Payment, Executive retains an amount Payment (other than interest and penalties imposed by reason of the Gross-Up Payment Employee's failure to file a timely tax return or pay taxes shown as due on his return), is equal to the payments and other benefits the Employee would have retained in the absence of the Excise Tax imposed upon Tax. For the Payments. Notwithstanding the foregoing provisions purpose of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and calculating the Gross-Up Payment, would not receive a net after-the Employee's tax benefit rate will be deemed to be the highest marginal rate of at least $50,000 (taking into account both federal individual income tax, plus the highest marginal rates of state, local and/or foreign individual income taxes in the state and locality or foreign jurisdiction of the Employee's residence (net of the reduction in federal income taxes which could be obtained from any Excise Tax) as compared deduction or credit attributable to the net after-tax proceeds to Executive resulting from an elimination of state, local or foreign taxes), that are in effect for the calendar year in which the Gross-Up Payment is to be made. (iii) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and a reduction the amount of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made at the Company's expense by an accounting firm selected by the Company and reasonably acceptable to Executive the Employee which is designated as one of the five largest accounting firms in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and the PaymentsEmployee within five days of the date of termination of the Employee's employment, in if applicable, or at such other time as may be requested by the aggregateCompany or the Employee (provided the Employee reasonably believes that she may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with an opinion to that effect which is reasonably acceptable to the Employee. Within ten days of the delivery of the Determination to the Employee, the Employee shall have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this paragraph (d), shall be reduced paid by the Company to the Reduced Amount.Employee within five days of the receipt of the Determination. The existence of the Dispute shall not in any way affect the Employee's right to receive the Gross-Up Payment in accordance with the Determination. Upon the final resolution of a Dispute, the Company shall promptly pay to the Employee any additional amount required by such resolution, or, if it is determined that the Excise Tax is lower than originally determined, the Employee shall repay to the Company the excess amount of the Gross-

Excise Tax Payments. (iiii) Anything in If any payments or benefits due to the Employee under this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that and/or under any payment other plan or distribution by program of the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (a “Payment”) would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to and if the amount of the Employee's parachute payments (as defined in Section 280G(b)(2) of the Code) taken into account for the purposes of such excise tax Excise Tax does not exceed 330% of the Employee's base amount (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as defined in Section 280G(b)(3) of the “Excise Tax”Code), then Executive the payments or benefits which are subject to the Excise Tax shall be entitled adjusted until the amount of such parachute payments equals 299% of such base amount. The adjustments shall be made in such manner, and to receive such payments or other benefits, as the Employee and the Company shall mutually agree. (ii) If any payments or benefits due to the Employee under this Agreement and/or under any other plan or program of the Company would be subject to the Excise Tax, and if the amount of the Employee's parachute payments (as defined in Section 280G(b)(2) of the Code) taken into account for the purposes of such Excise Tax exceeds 330% of the Employee's base amount (as defined in Section 280G(b)(3) of the Code), the Company shall pay to the Employee an additional payment amount (a “the "Gross-Up Payment”") in an so that the net amount such that is retained by the Employee, after payment by Executive the deduction of all the Excise Tax and any other 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 theretoExcise Taxes) and Excise Tax that are imposed upon the Gross-Up Payment, Executive retains an amount Payment (other than interest and penalties imposed by reason of the Gross-Up Payment Employee's failure to file a timely tax return or pay taxes shown as due on her return), is equal to the payments and other benefits the Employee would have retained in the absence of the Excise Tax imposed upon Tax. For the Payments. Notwithstanding the foregoing provisions purpose of this Subsection 5(i), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and calculating the Gross-Up Payment, would not receive a net after-the Employee's tax benefit rate will be deemed to be the highest marginal rate of at least $50,000 (taking into account both federal individual income tax, plus the highest marginal rates of state, local and/or foreign individual income taxes in the state and locality or foreign jurisdiction of the Employee's residence (net of the reduction in federal income taxes which could be obtained from any Excise Tax) as compared deduction or credit attributable to the net after-tax proceeds to Executive resulting from an elimination of state, local or foreign taxes), that are in effect for the calendar year in which the Gross-Up Payment is to be made. (iii) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and a reduction the amount of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made at the Company's expense by an accounting firm selected by the Company and reasonably acceptable to Executive the Employee which is designated as one of the five largest accounting firms in the United States (the "Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and the PaymentsEmployee within five days of the date of termination of the Employee's employment, in if applicable, or at such other time as may be requested by the aggregateCompany or the Employee (provided the Employee reasonably believes that she may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with an opinion to that effect which is reasonably acceptable to the Employee. Within ten days of the delivery of the Determination to the Employee, the Employee shall have the right to dispute the Determination (the "Dispute"). The Gross-Up Payment, if any, as determined pursuant to this paragraph (d), shall be reduced paid by the Company to the Reduced Amount.Employee within five days of the receipt of the Determination. The existence of the Dispute shall not in any way affect the Employee's right to receive the Gross-Up Payment in accordance with the Determination. Upon the final resolution of a Dispute, the Company shall promptly pay to the Employee any additional