Common use of Excise Tax Clause in Contracts

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise Tax"), then Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.

Excise Tax. (Ai) Notwithstanding anything Anything in this Agreement to the contrary set forth in this Agreementnotwithstanding, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that if it shall be determined that any Severance Benefit payment or distribution to the Executive or for the Executive's benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the "Payment") would be subject to the excise tax imposed by Section section 4999 of the Code, Code or any successor provision thereto (the "Excise Tax"), then the Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”") in an amount such that the net amount of the Severance Benefit Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this SectionSection 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up paymentPayment, shall be equal to the Severance Benefit.Payment; (Bii) all determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations shall be made in good faith by the Accountants (as defined below) which shall provide the Executive shall notify and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the "Accountants" shall mean the Company's independent certified public accountants serving immediately prior to the change in writing control that with other events results in the imposition of any claim the Excise Tax. In the event that the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the "Accountants). All fees and expenses of the Accountants shall be borne solely by the Internal Revenue Service thatCompany. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, if successfulsuch Payments will be treated as "parachute payments" within the meaning of section 280G of the Code, would require and all "parachute payments" in excess of the payment by "base amount" (as defined under section 280G(b)(3) of the Company Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute "parachute payments" or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the "base amount," or such "parachute payments" are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment. Such notification , (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be given as soon as practicable after Executive deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is informed to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in writing which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such claim and shall apprise the Company of the nature of state or local taxes if paid in such claim and the date year (determined without regard to limitations on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance deductions based upon the amount of such payment to Executive, on an interest-free basisyour adjusted gross income), and shall indemnify Executive to have otherwise allowable deductions for Federal, state and hold Executive harmless from, on an afterlocal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-tax basisUp Payment in the Executive's adjusted gross income. To the extent practicable, any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or Gross-Up Payment with respect to any imputed income with respect to such advance (including as a result of any forgiveness Payment shall be paid by the Company of such advance); provided, further, that at the time the Executive is entitled to receive the Payment and in no event will any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 paid later than five days after the receipt by the Executive of the Accountant's determination. Any determination by the Accountants shall be entitled to settle or contest, as binding upon the case may be, any other issue raised Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Internal Revenue Service Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the "Underpayment"). In the event that the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to or any other taxing authority.for the Executive's benefit; and

Excise Tax. (Aa) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it a Change in Control shall be determined occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any Severance Benefit payment made to Executive (whether paid 1) hereunder, and (2) pursuant to any plan, program or payable policy of Employer in connection with, on account of, or distributed or distributableas a result of, such Change in Control ("Total Payments") would will be subject to the excise tax imposed by provisions of Section 4999 of the Code, or any successor provision thereto (the "Excise Tax")section thereof, then Executive shall be entitled to receive from the Company an additional Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment”) in an amount "), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by Executive, after the payment of all such excise taxes on the Severance Benefit Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up paymentPayment, shall be equal to the Severance BenefitTotal Payments. The Total Payments, however, shall be subject to any federal, state and local income and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment shall be made at the same time as the payments described in subsections 3(a)(1) and (2) above. (Bb) Employer and Executive shall notify mutually and reasonably determine the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company amount of the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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 Payment to be paid. made to Executive shall not pay such claim prior pursuant to the expiration of the 30-day period following the date on which Executive gives such notice preceding subsection. Prior to the Company (or making of any such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an afterGross-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole optionUp Payment, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to party may request 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employer's expense, by independent tax counsel selected by Executive and approved by Employer (which approval shall not unreasonably be withheld), and such determination shall be conclusive and binding on the parties. Employer shall provide such information as such counsel may reasonably request, and such counsel may engage accountants or other experts at Employer's expense to the extent that they deem necessary or advisable to enable them to reach a determination. The term "independent tax counsel," as used herein, shall mean a law firm of recognized expertise in federal income tax matters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled pay to settle or contestEmployer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any other issue raised by underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service or any other taxing authorityService.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise Tax"), then Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx sxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx sxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.

Excise Tax. (Ai) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) Section 3 exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")) of ExecutiveEmployee's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive Employee (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise Tax"), then Executive Employee shall be entitled to receive from the Company Employer an additional payment (the "Gross-Up Payment”") in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by Employee after the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all Federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up paymentPayment, shall be equal to the Severance Benefit. (Bii) Executive Employee shall notify the Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive Employee is informed in writing of such claim and shall apprise the Company Employer of the nature of such claim and the date on which such claim is requested to be paid. Executive Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive Employee gives such notice to the Company Employer (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company Employer notifies Executive Employee in writing prior to the expiration of such period that it desires to contest such claim, Executive Employee shall: (1A) give the Company Employer any information reasonably requested by the Company Employer relating to such claim; (2B) take such action in connection with contesting such claim as the Company Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the CompanyEmployer; (3C) cooperate with the Company Employer in good faith in order to effectively contest such claim; and (4D) permit the Company Employer to participate in any proceedings relating to such claims; provided, however, that the Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive Employee for and hold Executive Employee harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive Employee to pay the tax claimed and xxx sxx for a refund or contest the claim in any permissible manner, and Executive 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 Employer shall determine; provided, however, that if the Company Employer directs Executive Employee to pay such claim and xxx sxx for a refund, the Company Employer shall advance the amount of such payment to ExecutiveEmployee, on an interest-free basis, and shall indemnify Executive Employee for and hold Executive Employee harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company Employer of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive Employee with respect to which such contested amount is claimed to 3 be due is limited solely to such contested amount. Furthermore, the CompanyEmployer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive 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.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times If any payment or distribution by the "base amount" (as defined in Section 280G(b)(3) Company to or for the benefit of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable pursuant to this Agreement or distributed or distributableotherwise (a "Payment")) would be is subject to the excise tax imposed by Section 4999 of the Code, Code or any successor provision thereto interest or penalties thereon (together, the "Excise Tax"), ) then Executive shall be entitled to receive from the Company an additional payment (the a "Gross-Up Payment”") in an amount such that that, after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties thereon, the net amount of the Severance Benefit and "Additional Income Tax") or any Excise Tax, imposed upon the Gross-Up Payment retained by the Executive after calculation and deduction retains an amount of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in equal to the Excise Tax imposed upon the Payments. (ii) Subject to Section 5.4(a)(iii), all determinations required to be made under this SectionSection 5.4, and taking into account any lost or reduced tax deductions on account of the including whether a Gross-Up paymentPayment is required and the amount of such Gross-Up Payment, shall be equal made by the firm of independent public accountants selected by the Company to audit its financial statements (the "Accounting Firm") which shall provide detailed supporting calculations both to the Severance BenefitCompany and Executive within fifteen (15) business days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 5.4, shall be paid to Executive within five (5) business days after the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up Payments should have been made by the Company (an "Underpayment"). If the Company exhausts its remedies pursuant to Section 5.4(a)(iii) and Executive 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 Executive. (Biii) Executive 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 the Gross-Up Payment. Such notification notice shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing knows of such claim Claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive's notice to the expiration of the 30-day period following Company or (y) the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1A) give the Company any information reasonably requested by the Company information relating to such claim; (2B) 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; (3C) cooperate with the Company in good faith in order to effectively contest such claim; and (4D) permit the Company to participate in any proceedings relating to such claimsclaim; 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 Executive for and hold such Executive harmless fromharmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) additional Income Tax imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this sectionSection 5.4(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and . Executive 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, however, that if the Company directs such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless fromharmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) Income Tax imposed with respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by the Company of such advance); provided, further, and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(a)(iii), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company's complying with the requirements of Section 5.4(a)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(a)(iii), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payment required to be paid.

Excise Tax. (A) Notwithstanding anything If any amount payable to the contrary set forth in or other benefit receivable by Executive pursuant to this Agreement, or any other agreement referred to herein or other arrangement with the Company or any of its subsidiaries, alone or when added to any other amount payable or paid to or other benefit receivable or received by Executive (collectively, an "Excess Parachute Payment"), would result in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed the imposition on Executive of an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in excise tax under Section 280G(b)(3) 4999 of the Internal Revenue Code) Code of Executive's compensation1986, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto amended (the "Excise TaxCode"), then then, in addition to any other benefits to which Executive is entitled under this Agreement, Executive shall be entitled to receive from paid by the Company an additional payment amount (the "Gross-Up Payment”Amount") in an cash equal to the amount such that necessary to put Executive in the net amount of same after-tax position as if no excise taxes, income taxes (with respect to the Severance Benefit Gross-Up Amount), interest and penalties had been imposed with respect to the Excess Parachute Payment and the Gross-Up Payment retained Amount. Whether a payment or benefit results in the imposition of an excise tax and the amount of any payment under this section shall be determined by a nationally recognized certified public accounting firm designated by the Executive after calculation Company. All fees and deduction expenses of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, accounting firm shall be equal to paid by the Severance Benefit. (B) Company. Executive 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 the a Gross-Up PaymentAmount. Such notification shall be given as soon as practicable (but not later than 15 business days after Executive is informed in writing of such claim claim) and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1a) give provide the Company with any information reasonably requested by the Company it relating to such claim; (2b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, including without limitation, limitation accepting legal representation with respect to so such claim by an attorney reasonably selected by the Company; (3c) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.

Excise Tax. a. If PGI is not an entity whose stock is readily tradable on an established securities market (Aor otherwise) Notwithstanding anything at the time that a “change of control” under Regulation 1.280G occurs following the Effective Time, Executive and PGI shall use their respective best efforts to avoid the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to imposition of the lesser of (i) 2.99 times the "base amount" (as defined in excise tax imposed by Section 280G(b)(3) 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or a loss of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in deductibility under Section 280G of the Code, including, to the extent Executive agrees to waive his entitlement to potential “parachute payments” (as defined under Regulation 1.280G). In , the Company shall seek to obtain stockholder approval thereof in accordance with the terms of Section 280G(b)(5) of the Code. b. If PGI is an entity whose stock is readily tradable on an established securities market (or otherwise) at the time that a “change in control” under Regulation 1.280G occurs following the Effective Time, then anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any Severance Benefit payment, benefit or distribution to Executive (whether paid or payable for your benefit or distributed or distributable) the acceleration thereof would be subject to the excise tax imposed by Section 4999 of the Code, Code or any successor provision thereto (the "Excise Tax"), then Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is dueexcise tax (collectively, such excise tax, together with any such interest or penalties, the “Excise Tax”) (all such payments and benefits, including any cash severance payments payable pursuant to any other plan, arrangement or agreement, hereinafter referred to as the “Total Payments”). If , then, after taking into account any reduction in the Company notifies Executive Total Payments provided by reason of Section 280G of the Code in writing prior such other plan, arrangement or agreement, the cash severance payments shall first be reduced, and the noncash severance payments shall thereafter be reduced, to the expiration extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (i) the net amount of such period that it desires to contest Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such claim, Executive shall: (1) give reduced Total Payments and after taking into account the Company any information reasonably requested by the Company relating phase out of itemized deductions and personal exemptions attributable to such claim; reduced Total Payments) is greater than or equal to (2ii) take the net amount of such action Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which you would be subject in connection with contesting respect of such claim as unreduced Total Payments and after taking into account the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect phase out of itemized deductions and personal exemptions attributable to such claim by an attorney reasonably selected by the Company; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claimsunreduced Total Payments); provided, however, that you may elect to have the Company noncash severance payments reduced (or eliminated) prior to any reduction of the cash severance payments. Executive shall bear remain solely liable for all income taxes, Excise Tax, or other amounts assessed on any payments or benefits and nothing in this Agreement shall be interpreted as obligating the Company, or any successors thereto, to pay directly all costs and expenses (including additional interest and penaltiesor reimburse Executive for) any income taxes, Excise Tax, or other taxes or amounts assessed against or incurred by Executive in connection with such contest and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result ’s receipt of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle payments or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authoritybenefits.

Excise Tax. (A) Notwithstanding anything contained in this Agreement to the contrary set forth in this Agreementcontrary, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser extent that any payment or benefit (within the meaning of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code")) of to Executive or for Executive's compensationbenefit, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise in connection with, 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 successor provision thereto 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 the Payments shall be reduced (but not below zero) if and to the extent necessary so that no Payment to be made or benefit to be provided to Executive shall be entitled subject to receive from the Company an additional payment Excise Tax (such reduced amount is hereinafter referred to as the "Limited Payment Amount"). Any notice given by Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive's rights and entitlements to any benefits or compensation. (a) An initial determination as to whether the Payments shall be reduced to the Limited Payment Amount and the amount of such Limited Payment Amount shall be made, at the Company's expense, by the accounting firm that is the Company's independent accounting firm as of the date of the Change in Control (the "Gross-Up Payment”Accounting Firm"). The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to the Company and Executive within five (5) in an amount days after the Termination Date, if applicable, or such other time as requested by the Company or by Executive (provided Executive reasonably believes that the net amount any of the Severance Benefit and Payments may be subject to the Gross-Up Excise Tax) and, if the Accounting Firm determines that no Excise Tax is payable by Executive with respect to a Payment retained by the or Payments, it shall furnish Executive after calculation and deduction of all with an opinion reasonably acceptable to Executive that no Excise Taxes (including any interest or penalties Tax will be imposed with respect to any such taxesPayment or Payments. Within ten (10) or days after the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account delivery of the Gross-Up paymentDetermination to Executive, Executive shall have the right to dispute the Determination (the "Dispute"). If there is no Dispute, the Determination shall be equal binding, final and conclusive upon the Company and Executive, subject to the Severance Benefitapplication of Section 8(b) below. (Bb) As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that the Payments to be made to, or provided for the benefit of, Executive shall notify will be either greater (an "Excess Payment") or less (an "Underpayment") than the Company in writing of any claim amounts provided for by the limitations contained in Section 8. (i) If it is established, pursuant to a final determination of a court or an Internal Revenue Service that(the "IRS") proceeding which has been finally and conclusively resolved, if successfulthat an Excess Payment has been made, would require the payment by the Company of the Gross-Up Payment. Such notification such Excess Payment shall be given as soon as practicable after deemed for all purposes to be a loan to Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and made on the date on Executive received the Excess Payment, which such claim is requested to be paid. loan Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice must repay to the Company (or such shorter period ending on together with interest at the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advanceapplicable federal rate under Code Section 7872(f)(2); provided, further, that any extension of the statute of limitations relating no loan shall be deemed to have been made and no amount will be payable by Executive to the payment of taxes for Company unless, and only to the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermoreextent that, the Company's control deemed loan and payment would either reduce the amount on which Executive is subject to tax under Code Section 4999 or generate a refund of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authoritytax imposed under Code Section 4999.

Excise Tax. (Aa) Notwithstanding anything If any payment or distribution by the Company to or for the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser benefit of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable pursuant to this Agreement or distributed or distributableotherwise, but determined without regard to any additional payments required under this Section 5.4 (a "Payment")) would be is subject to the excise tax imposed by Section 4999 of the Code, Code or any successor provision thereto interest or penalties thereon (together the "Excise Tax"), ) then Executive shall be entitled to receive from the Company an additional payment (the a "Gross-Up Payment”") in an amount such that after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties thereon, the net amount of the Severance Benefit and "Additional Income Tax") or any Excise Tax, imposed upon the Gross-Up Payment retained by the Executive after calculation and deduction retains an amount of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in equal to the Excise Tax imposed upon the Payments. (b) Subject to Section 5.4(c), all determinations required to be made under this SectionSection 5.4, and taking into account any lost or reduced tax deductions on account of the including whether a Gross-Up paymentPayment is required and the amount of such Gross-Up Payment, shall be equal made by the firm of independent public accountants selected by the Company to audit its financial statements (the "Accounting Firm") which shall provide detailed supporting calculations both to the Severance BenefitCompany and executive within fifteen (15) business days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 5.4, shall be paid to Executive within five (5) business days after the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up payments should have been made by the Company (an "Underpayment"). If the Company exhausts its remedies pursuant to Section 5.4(c) and Executive 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 Executive. (Bc) Executive 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 the Gross-Up Payment. Such notification notice shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive's notice to the expiration of the 30-day period following Company or (y) the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1i) give the Company any reasonable requested information reasonably requested by the Company relating to such claim; (2ii) 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; (3iii) cooperate with the Company in good faith in order to effectively contest such claim; and (4iv) permit the Company to participate in any proceedings relating to such claimsclaim; provided, however, 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 Executive for and hold such Executive harmless fromharmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) additional Income Tax imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this sectionSection 5.4(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and . Executive 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, however, that if the Company directs such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless fromharmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) Income Tax imposed with respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by the Company of such advance); provided, further, and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(c), Executive becomes entitled to receive any refund with respect to such claim, executive shall (subject to the Company's complying with the requirements of Section 5.4(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive 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 any Gross-Up Payment required to be paid.

Excise Tax. (Aa) Notwithstanding anything If any payment or distribution by the Company to or for the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser benefit of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable pursuant to this Agreement or distributed or distributableotherwise, but determined without regard to any additional payments required under this Section 5.4 (a "Payment")) would be is subject to the excise tax imposed by Section 4999 of the Code, Code or any successor provision thereto interest or penalties thereon (together the "Excise Tax"), ) then Executive shall be entitled to receive from the Company an additional payment (the "a Gross-Up Payment”") in an amount such that after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties thereon, the net amount of the Severance Benefit and "Additional Income tax") or any Excise Tax, imposed upon the Gross-Up Payment retained by the Executive after calculation and deduction retains an amount of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in equal to the Excise Tax imposed upon the Payments. (b) Subject to Section 5.4(c), all determinations required to be made under this SectionSection 5.4, and taking into account any lost or reduced tax deductions on account of the including whether a Gross-Up paymentPayment is required and the amount of such Gross-Up Payment, shall be equal made by the firm of independent public accountants selected by the Company to audit its financial statements (the "Accounting Firm") which shall provide detailed supporting calculations both to the Severance BenefitCompany and the executive within fifteen (15) business days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 5.4, shall be paid to Executive within five (5) business days after the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up payments should have been made by the Company (an "Underpayment"). If the Company exhausts its remedies pursuant to Section 5.4(c) and Executive thereafter is required to make 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 Executive. (Bc) Executive 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 the Gross-Up Payment. Such notification notice shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive's notice to the expiration of the 30-day period following Company or (y) the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it is desires to contest such claim, Executive shall: (1i) give the Company any reasonable requested information reasonably requested by the Company relating to such claim; ; (2ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; ; (3iii) cooperate with the Company in good faith in order to effectively contest such claim; and and (4iv) permit the Company to participate in any proceedings relating to such claimsclaim; provided, however, 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 Executive for and hold such Executive harmless fromharmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) additional Income Tax imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this sectionSection 5.4(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and . Executive 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, however, that if the Company directs such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless fromharmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) Income Tax imposed with respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by the Company of such advance); provided, further, and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(c), Executive becomes entitled to receive any refund with respect to such claim, executive shall (subject to the Company's complying with the requirements of Section 5.4(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive 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 any Gross-Up Payment required to be paid.

Excise Tax. (Aa) Notwithstanding anything in the Agreement to the contrary set forth in this Agreementcontrary, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that Executive’s employment is terminated within the two (2) year period following the Closing and it shall be determined that that, as a result of the Merger, any Severance Benefit payment, distribution, benefit or other entitlement by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributabledistributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 7.14) (a “Payment”) would be subject to the excise tax imposed by Section section 4999 of the Code, Code or any successor provision thereto 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 from the Company an additional payment (the "a “Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained after payment by the Executive after calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; any income taxes (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in and any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including 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. Such Gross-Up Payment shall be paid to Executive at the time(s) the Payment becomes subject to the Excise Tax. (b) Notwithstanding anything in the Agreement to the contrary, in the event that it shall be determined that, as a result of such representation and payment a Change of all related costs and expenses. Without limiting the foregoing provisions Control of this section, Parent or a Change of Control of the Company that occurs prior to an initial public offering of the shares of Parent or the Company, any Payment would be subject to the Excise Tax, then the Company, Parent and OEP shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manneruse their best efforts, and Executive agrees shall cooperate, to prosecute obtain the required shareholder vote 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount no portion of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled subject to settle or contestthe Excise Tax, as in accordance with section 280G(b)(5)(B) of the case may be, any other issue raised by the Internal Revenue Service or any other taxing authorityCode.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times If any payment or distribution by the "base amount" (as defined in Section 280G(b)(3) Company to or for the benefit of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable pursuant to this Agreement or distributed or distributableotherwise (a “Payment”)) would be is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code, ”) or any successor provision thereto interest or penalties thereon (together, the "“Excise Tax"), ”) then Executive shall be entitled to receive from the Company an additional payment (the "a “Gross-Up Payment”) in an amount such that that, after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties thereon, the net amount of the Severance Benefit and “Additional Income Tax”) or any Excise Tax, imposed upon the Gross-Up Payment retained by the Executive after calculation and deduction retains an amount of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in equal to the Excise Tax imposed upon the Payments. (ii) Subject to Section 5.4(a)(iii), all determinations required to be made under this SectionSection 5.4, and taking into account any lost or reduced tax deductions on account of the including whether a Gross-Up paymentPayment is required and the amount of such Gross-Up Payment, shall be equal made by the firm of independent public accountants selected by the Company to audit its financial statements (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Severance BenefitCompany and Executive within fifteen (15) business days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 5.4, shall be paid to Executive within five (5) business days after the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up Payments should have been made by the Company (an “Underpayment”). If the Company exhausts its remedies pursuant to Section 5.4(a)(iii) and Executive 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 Executive. (Biii) Executive 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 the Gross-Up Payment. Such notification notice shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing knows of such claim Claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive’s notice to the expiration of the 30-day period following Company or (y) the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1A) give the Company any information reasonably requested by the Company information relating to such claim; (2B) 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; (3C) cooperate with the Company in good faith in order to effectively contest such claim; and (4D) permit the Company to participate in any proceedings relating to such claimsclaim; 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 Executive for and hold such Executive harmless fromharmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) additional Income Tax imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this sectionSection 5.4(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and . Executive 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, however, that if the Company directs such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless fromharmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) Income Tax imposed with respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by the Company of such advance); provided, further, and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(a)(iii), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of Section 5.4(a)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(a)(iii), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payment required to be paid.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "“base amount" ” (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's ’s compensation, or (ii) such other amount which would constitute a "“parachute payment" ” (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "“Excise Tax"”), then Executive shall be entitled to receive from the Company an additional payment (the "“Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.contested

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d7(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise Tax"), then Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "“base amount" ” (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's ’s compensation, or (ii) such other amount which would constitute a "“parachute payment" ” (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "“Excise Tax"”), then Executive shall be entitled to receive from the Company an additional payment (the "“Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's ’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

Excise Tax. (A) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise Tax"), then Executive shall be entitled to receive from the Company an additional payment (the "Gross-Up Payment”) in an amount such that the net amount of the Severance Benefit and the Gross-Up Payment retained by the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) or the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up payment, shall be equal to the Severance Benefit. (B) Executive 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 the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive 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. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) 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; (3) cooperate with the Company in good faith in order to effectively contest such claim; and (4) permit the Company to participate in any proceedings relating to such claims; 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 Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx sxx for a refund or contest the claim in any permissible manner, and Executive 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, however, that if the Company directs Executive to pay such claim and xxx sxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive 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.

Excise Tax. (Aa) Notwithstanding anything If any payment or distribution by the Company to or for the contrary set forth in this Agreement, in no event shall a Severance Benefit payable pursuant to this Paragraph 6(d) exceed an amount equal to the lesser benefit of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of Executive's compensation, or (ii) such other amount which would constitute a "parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit to Executive (whether paid or payable pursuant to this Agreement or distributed or distributableotherwise, but determined without regard to any additional payments required under this Section 5.4 (a "Payment")) would be is subject to the excise tax imposed by Section 4999 of the Code, Code or any successor provision thereto interest or penalties thereon (together the "Excise Tax"), ) then Executive shall be entitled to receive from the Company an additional payment (the a "Gross-Up Payment”") in an amount such that after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties thereon, the net amount of the Severance Benefit and "Additional Income tax") or any Excise Tax, imposed upon the Gross-Up Payment retained by Executive retains an amount of the Executive after calculation and deduction of Gross-up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to Section 5.4(c), all Excise Taxes (determinations required to be made under this Section 5.4, including any interest or penalties imposed with respect to such taxes) or the whether a Gross-Up Payment provided for in this Section, is required and taking into account any lost or reduced tax deductions on account the amount of the such Gross-Up paymentPayment, shall be equal made by the firm of independent public accountants selected by the Company to audit its financial statements (the "Accounting Firm") which shall provide detailed supporting calculations both to the Severance BenefitCompany and executive within fifteen (15) business days after the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. 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 5.4, shall be paid to Executive within five (5) business days after the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that additional Gross-Up payments should have been made by the Company (an "Underpayment"). If the Company exhausts its remedies pursuant to Section 5.4(c) and Executive thereafter is 7 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 Executive. (Bc) Executive 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 the Gross-Up Payment. Such notification notice shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim and the date on which such claim is requested to be paidclaim. Executive shall not pay such claim prior before the earlier of (x) the date thirty (30) days after Executive's notice to the expiration of the 30-day period following Company or (y) the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes, interest and/or penalties taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1i) give the Company any reasonable requested information reasonably requested by the Company relating to such claim; (2ii) 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; (3iii) cooperate with the Company in good faith in order to effectively contest such claim; and (4iv) permit the Company to participate in any proceedings relating to such claimsclaim; provided, however, 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 Executive for and hold such Executive harmless fromharmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) additional Income Tax imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this sectionSection 5.4(c), the Company shall control all proceedings proceeding taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and . Executive 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, however, that if the Company directs such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify Executive for and hold Executive harmless fromharmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) Income Tax imposed with 8 respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by the Company of such advance); provided, further, and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, 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 Executive shall be entitled to settle or contest, as the case may be, contest any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(c), Executive becomes entitled to receive any refund with respect to such claim, executive shall (subject to the Company's complying with the requirements of Section 5.4(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive 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 any Gross-Up Payment required to be paid.

Excise Tax. (Ai) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall a Severance Benefit Payment payable pursuant to this Paragraph 6(d) Section 3 exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code) of ExecutiveEmployee's compensation, or (ii) such other amount which would constitute a an "excess parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any Severance Benefit Payment to Executive Employee (whether paid or payable or distributed or distributable) would be subject to the excise tax imposed by Section 4999 of the Code, or any successor provision thereto (the "Excise TaxEXCISE TAX"), then Executive Employee shall be entitled to receive from the Company Employer an additional payment (the "GrossGROSS-Up Payment”UP PAYMENT") in an amount such that the net amount of the Severance Benefit Payment and the Gross-Up Payment retained by Employee after the Executive after calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all Federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up paymentPayment, shall be equal to the Severance BenefitPayment. In the event Employer exhausts its remedies pursuant to this Section and Employee is required to make a payment of any Excise Tax, the Gross-Up Payment shall be promptly paid by Employer to or for Employee's benefit. (Bii) Executive Employee shall notify the Company Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable after Executive Employee is informed in writing of such claim and shall apprise the Company Employer of the nature of such claim and the date on which such claim is requested to be paid. Executive Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive Employee gives such notice to the Company Employer (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such claim is due). If the Company Employer notifies Executive Employee in writing prior to the expiration of such period that it desires to contest such claim, Executive Employee shall: (1A) give the Company Employer any information reasonably requested by the Company Employer relating to such claim; (2B) take such action in connection with contesting such claim as the Company Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the CompanyEmployer; (3C) cooperate with the Company Employer in good faith in order to effectively contest such claim; and (4D) permit the Company Employer to participate in any proceedings relating to such claims; provided, however, that the Company Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive Employee for and hold Executive Employee harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, the Company Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive 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 Employer shall determine; provided, however, that if the Company Employer directs Executive Employee to pay such claim and xxx for a refund, the Company Employer shall advance the amount of such payment to ExecutiveEmployee, on an interest-free basis, and shall indemnify Executive Employee for and hold Executive Employee harmless from, on an after-tax basis, 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 (including as a result of any forgiveness by the Company Employer of such advance); provided, further, that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the CompanyEmployer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive 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.