Common use of Golden Parachute Tax Clause in Contracts

Golden Parachute Tax. (i) If the aggregate of all amounts and benefits due to you, under this Agreement or any other plan, program, agreement or arrangement of the Company or any of its Affiliates (or any payments, benefits or entitlements by any entity that effectuates a related transaction), would constitute “parachute payments” as such term is defined in and under Section 280G of the Code (collectively, “Change in Control Benefits”), and would result in the imposition of excise taxes pursuant to Section 4999 of the Code, the Company will make an additional payment to you in an amount (the “Gross-Up Payment”) such that, after payment all taxes and any interest or penalties imposed with respect to such taxes (including, without limitation, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes imposed under Section 409A of the Code) (the “Parachute Tax”) on both the Change in Control Benefits and the Gross-Up Payment, you will be in the same position as if no Parachute Tax had been imposed. Any Gross-Up Payment shall be timely paid by the Company on your behalf directly to the appropriate taxing authorities when due, but in all events no later than the last day of the calendar year after the calendar year in which the Parachute Tax shall be paid. The determinations with respect to this Section 3(l)(i) shall be made by an independent auditor (the “Auditor”) paid by the Company. The Auditor shall be a nationally-recognized United States public accounting firm chosen by the Company and approved by you (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing provisions of this Section 3(l)(i), if it shall be determined that you are entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Change in Control Benefits does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Change in Control Benefits, in the aggregate, equals the Safe Harbor Amount minus $5,000.00. The reduction of the amounts payable hereunder which constitute Change in Control Benefits, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (x) Section 6(b)(iii), (y) Section 6(b)(iv) and (z) Section 6(b)(v). For purposes of reducing the Change in Control Benefits to the Safe Harbor Amount minus $5,000, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Parachute Value of all Change in Control Benefits to the Safe Harbor Amount minus $5,000, no amounts payable under the Agreement or otherwise shall be reduced pursuant to this Section 3(l)(i). The Company’s obligation to make Gross-Up Payments under this Section 3(1) shall not be conditioned upon your termination of employment. (ii) It is possible that after the determinations and selections made pursuant to Section 3(l)(i) you will receive Change in Control Benefits and Gross-Up Payments that are, in the aggregate, either more or less than the limitations provided in Section 3(l)(i) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then you shall refund the Excess Payment to the Company promptly on demand, together with an additional payment in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of your receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it is determined (x) by arbitration under Section 8 below, (y) by a court of competent jurisdiction, or (z) by the Auditor upon request by you or the Company, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to you within 10 days of such determination together with an additional payment in an amount equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of the Underpayment through the date of such payment and whose denominator is 365. (iii) Any Gross-Up Payment, as determined pursuant to this Section 3(1), shall be paid by the Company and remitted to the relevant tax authorities when such payment is due, provided that in no event shall such payment be made later than the end of your taxable year next following your taxable year in which the Parachute Tax on a Change in Control Benefit are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim described in Section 3(l)(ii) that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved.

Golden Parachute Tax. (i) If In the aggregate of all amounts and event that the benefits due to you, under provided for in this Agreement or any other plan, program, agreement or arrangement of otherwise payable to the Company or any of its Affiliates (or any payments, benefits or entitlements by any entity that effectuates a related transaction), would Employee constitute “parachute payments” as such term is defined in and under within the meaning of Section 280G of the Code (collectively, “Change in Control Benefits”), and would result in will be subject to the imposition of excise taxes pursuant to tax imposed by Section 4999 of the Code, then the Company will make an additional payment shall pay to you in the Employee an amount (the “Gross-Up Payment”) sufficient to pay such thatexcise tax (such excise tax, after payment all taxes together with any such interest and any interest or penalties imposed with respect are hereinafter collectively referred to such taxes (including, without limitation, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes imposed under Section 409A of the Code) (as the “Parachute Excise Tax”) as well as all income and employment taxes imposed on both the Change in Control Benefits and the Gross-Up Payment, you will any Excise Tax imposed on the Gross-Up Payment, and any interest or penalties with respect to income and employment taxes imposed on the Gross-Up Payment; provided that such payment by the Company to the Employee shall not exceed two hundred fifty thousand dollars ($250,000. Unless the Company and the Employee otherwise agree in writing, the determination of the Employee’s excise tax liability and the amount required to be paid under this Section 5.5 shall be made in writing by a nationally recognized accounting firm satisfactory to both parties (the same position as if no Parachute Tax had been imposed“Accountants”). For purposes of making the calculations required by this Section 5.5, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on interpretations of the Code for which there is a “substantial authority” tax reporting position; however, such calculations shall be performed assuming that Employee pays taxes at the highest applicable marginal tax rate. The Company and the Employee shall furnish to the Accountants such information and documents the Accountants may reasonably request in order to make a determination under this Section 5.5. The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 5.5. Any Gross-Up Payment shall be timely paid by made as soon as practicable following the Company on your behalf directly to the appropriate taxing authorities when duetriggering event, but in all events no later than the last day of the calendar year after the calendar year in which the Parachute Tax shall be paid. The determinations with respect to this Section 3(l)(i) shall be made by an independent auditor (the “Auditor”) paid by the Company. The Auditor shall be a nationally-recognized United States public accounting firm chosen by the Company and approved by you (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing provisions of this Section 3(l)(i), if it shall be determined that you are entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Change in Control Benefits does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Change in Control Benefits, in the aggregate, equals the Safe Harbor Amount minus $5,000.00. The reduction of the amounts payable hereunder which constitute Change in Control Benefits, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (x) Section 6(b)(iii), (y) Section 6(b)(iv) and (z) Section 6(b)(v). For purposes of reducing the Change in Control Benefits to the Safe Harbor Amount minus $5,000, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Parachute Value of all Change in Control Benefits to the Safe Harbor Amount minus $5,000, no amounts payable under the Agreement or otherwise shall be reduced pursuant to this Section 3(l)(i). The Company’s obligation to make Gross-Up Payments under this Section 3(1) shall not be conditioned upon your termination of employment. (ii) It is possible that after the determinations and selections made pursuant to Section 3(l)(i) you will receive Change in Control Benefits and Gross-Up Payments that are, in the aggregate, either more or less than the limitations provided in Section 3(l)(i) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then you shall refund the Excess Payment to the Company promptly on demand, together with an additional payment in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of your receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it is determined (x) by arbitration under Section 8 below, (y) by a court of competent jurisdiction, or (z) by the Auditor upon request by you or the Company, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to you within 10 days of such determination together with an additional payment in an amount equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of the Underpayment through the date of such payment and whose denominator is 365. (iii) Any Gross-Up Payment, as determined pursuant to this Section 3(1), shall be paid by the Company and remitted to the relevant tax authorities when such payment is due, provided that in no event shall such payment be made later than the end of your the Employee’s taxable year next following your taxable the year in which the Parachute Tax on a Change in Control Benefit are remitted to Employee pays the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim described in Section 3(l)(ii) that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolvedrelated Excise Taxes.

Golden Parachute Tax. (i) If Notwithstanding anything contained in this Change of Control Letter to the aggregate contrary, in the event that the accelerated vesting of all amounts stock options which were granted to you by the Corporation on the Effective Date (the “Manpower Options” and benefits due the “Option Acceleration”) causes any payment or distribution to you, under this Agreement or for your benefit from the Corporation or any other plan, program, agreement or arrangement affiliate of the Company Corporation (a “Payment” or any of its Affiliates (or any payments, benefits or entitlements “Payments”) to become subject to the excise tax imposed by any entity that effectuates a related transaction), would constitute “parachute payments” as such term is defined in and under Section 280G section 4999 of the Internal Revenue Code of 1986, as amended (collectively, the “Change in Control BenefitsCode”), or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any interest and would result in penalties, are collectively referred to as the imposition of excise taxes pursuant “Excise Tax”), then you shall be entitled to Section 4999 of the Code, the Company will make receive an additional payment to you in an amount (the a “Gross-Up Payment”) Xxxxxxx Xxxxxx December 10, 2003 in an amount such that, that after payment by you of all taxes and (including any interest or penalties imposed with respect to such taxes (includingtaxes), without limitationincluding any Excise Tax, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes imposed under Section 409A of the Code) (the “Parachute Tax”) on both the Change in Control Benefits and upon the Gross-Up Payment, you will be in retain an amount of the same position as if no Parachute Tax had been imposed. Any Gross-Up Payment equal to the Excise Tax imposed upon the Payments. For these purposes, the Manpower Options will cause a payment to be subject to the Excise Tax if Payments would not be subject to the Excise Tax if there Option Acceleration is not considered but such Payments do become subject to the Excise Tax when the Option Acceleration is considered. (ii) A determination shall be timely paid by the Company on your behalf directly made as to the appropriate taxing authorities whether and when due, but in all events no later than the last day of the calendar year after the calendar year in which the Parachute Tax shall be paid. The determinations with respect a Gross-Up Payment is required pursuant to this Section 3(l)(i2(d) shall be made by an independent auditor (and the “Auditor”) paid by the Company. The Auditor shall be a nationally-recognized United States public accounting firm chosen by the Company and approved by you (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing provisions amount of this Section 3(l)(i), if it shall be determined that you are entitled to the such Gross-Up Payment, such determination to be made within fifteen business days of the Date of Termination, or such other time as requested by the Corporation or by you (provided you reasonably believe that any of the Payments may be subject to the Excise Tax). Such determination shall be made by a national independent accounting firm selected by you (the “Accounting Firm”). All fees, costs and expenses (including, but that not limited to, the Parachute Value (as defined belowcost of retaining experts) of all Change in Control Benefits does not exceed 110% the Accounting Firm shall be borne by the Corporation and the Corporation shall pay such fees, costs and expenses as they become due. The Accounting Firm shall provide detailed supporting calculations, acceptable to you, both to the Corporation and you. The Gross-Up Payment, if any, as determined pursuant to this Subsection 2(d)(ii) shall be paid by the Corporation to you within five business days of the Safe Harbor Amount (as defined below), then no receipt of the Accounting Firm’s determination. Any such initial determination by the Accounting Firm of whether or when a Gross-Up Payment is required and, if such a payment is required, the amount thereof shall be made binding upon the Corporation and you subject to you and the amounts payable under this Agreement shall be reduced so that application of Subsection 2(d)(iii). (iii) As a result of the Parachute Value of all Change in Control Benefits, uncertainty in the aggregate, equals the Safe Harbor Amount minus $5,000.00. The reduction application of sections 4999 and 280G of the amounts payable hereunder which constitute Change in Control BenefitsCode, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (x) Section 6(b)(iii), (y) Section 6(b)(iv) and (z) Section 6(b)(v). For purposes of reducing the Change in Control Benefits to the Safe Harbor Amount minus $5,000, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in it is possible that a reduction of the Parachute Value of all Change in Control Benefits to the Safe Harbor Amount minus $5,000, no amounts payable under the Agreement or otherwise shall be reduced pursuant to this Section 3(l)(i). The Company’s obligation to make Gross-Up Payment (or a portion thereof) will be paid which should not have been paid (an “Overpayment”) or a Gross-Up Payment (or a portion thereof) which should have been paid will not have been paid (an “Underpayment”). An Underpayment shall be deemed to have occurred upon notice (formal or informal) to you from any governmental taxing authority that your tax liability (whether in respect of your then current taxable year or in respect of any prior taxable year) may be increased by reason of the imposition of the Excise Tax on a Payment or Payments under this Section 3(1with respect to which the Corporation has failed to make a sufficient Gross-Up Payment. An Overpayment shall be deemed to have occurred upon a “Final Determination” (as hereinafter defined) that the Excise Tax shall not be conditioned imposed upon your termination of employment. (ii) It is possible that after the determinations and selections made pursuant a Payment or Payments with respect Xxxxxxx Xxxxxx December 10, 2003 to Section 3(l)(i) which you will receive Change in Control Benefits and had previously received a Gross-Up Payments that arePayment. A Final Determination shall be deemed to have occurred when you have received from the applicable governmental taxing authority a refund of taxes or other reduction in your tax liability by reason of the Overpayment and upon either (A) the date a determination is made by, in the aggregate, either more or less than the limitations provided in Section 3(l)(i) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been agreement is entered into with, the applicable governmental taxing authority which finally and conclusively resolvedbinds you and such taxing authority, that an Excess Payment has been made, then you shall refund the Excess Payment to the Company promptly on demand, together with an additional payment or in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of your receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it a claim is determined (x) by arbitration under Section 8 below, (y) by brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the time for all appeals has expired or (zB) by the Auditor upon request by you or expiration of the Company, that statute of limitations with your applicable tax return. If an Underpayment has occurredoccurs, you shall promptly notify the Company Corporation and the Corporation shall pay to you at least five business days prior to the date on which the applicable governmental taxing authority has requested payment, an amount additional Gross-Up Payment equal to the amount of the Underpayment plus any interest and penalties imposed on the Underpayment. If an Overpayment occurs, the amount of the Overpayment shall be treated as a loan by the Corporation to you and you shall, within 10 ten business days of the occurrence of such determination together with Overpayment, pay to the Corporation the amount of the Overpayment plus interest at an additional payment in an amount annual rate equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined provided for in and under Section 1274(dsection 1274(b)(2)(B) of the Code) times a fraction whose numerator is the number of days elapsed Code from the date of the Underpayment through Gross-Up Payment (to which the date of such payment and whose denominator is 365Overpayment relates) was paid to you. (iiiiv) Any Gross-Up Payment, as determined pursuant to Notwithstanding anything contained in this Section 3(1), shall be paid by the Company and remitted letter to the relevant tax authorities when such payment is due, provided that in no event shall such payment be made later than the end of your taxable year next following your taxable year in which the Parachute Tax on a Change in Control Benefit are remitted to the Internal Revenue Service or any other applicable taxing authority orcontrary, in the case of amounts relating to a claim described in Section 3(l)(ii) event it is determined that does not result in the remittance of an Excise Tax will be imposed on any federal, state, local and foreign income, excise, social security and other taxesPayment or Payments, the calendar year in which Corporation shall pay to the claim is finally settled applicable governmental taxing authorities as Excise Tax withholding, the amount of the Excise Tax that the Corporation has actually withheld from the Payment or otherwise resolvedPayments.

Golden Parachute Tax. (ia) If In the aggregate of all amounts event that the Value (as hereinafter defined) attributable to the payments and benefits due provided in Section 2 above (“Agreement Payments”), in combination with the Value attributable to you, under this Agreement other payments or any other plan, program, agreement benefits in the nature of compensation to or arrangement for the benefit of the Company Executive (including but not limited to the value attributable to accelerated vesting of options or any of its Affiliates (other equity or any paymentsnon-equity incentive compensation awards and, benefits or entitlements by any entity that effectuates a related transactioncollectively with Agreement Payments, “Payments”), would constitute an “excess parachute paymentspayment” as such term is defined in and under (within the meaning of Section 280G of the Code (collectively, “Change in Control Benefits”), and would result in Code) such that the imposition excise tax of excise taxes pursuant to Section 4999 of the CodeCode (the “Excise Tax”) is imposed on the Executive, the Company will make shall provide to the Executive (either directly or through payment of taxes via required withholding), in cash, an additional payment to you in an amount (the “Gross-Up up Payment”) such that, after payment all taxes and any interest or penalties imposed with respect to such taxes (including, without limitation, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes imposed under Section 409A of that the Code) (net amount retained by the “Parachute Tax”) on both Executive from the Change in Control Benefits Payments and the Gross-Up up Payment, you will after reduction for any Excise Tax upon the Payments and any federal, state and local income and employment taxes and Excise Tax on the Gross-up Payment, and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be in equal to the same position as if no Parachute Tax had been imposedPayments at the time such Payments are to be made. Any Gross-Up Payment or other payment payable under this Section 5 shall be timely paid by the Company on your behalf directly to the appropriate taxing authorities when due, but Executive promptly and in all events no event later than the last day end of the calendar year after next following the calendar year in which the Parachute Tax related tax is paid by the Executive. (b) For purposes of this Section 5, the Company and the Executive hereby irrevocably appoint the persons who constituted the Compensation Committee of the Board immediately prior to a Change of Control, or a three person panel named by a majority of them, as arbitrators (the “Arbitrators”) to make all determinations required under this Section 5, including but not limited to the Value of all Payments (and the components thereof). For purposes of this Section 5, “Value” shall be paidmean value as determined by the Arbitrators applying the valuation procedures and methodologies established pursuant to the Code section or sections applicable to “excess parachute payments,” including any interpretive guidance (whether or not binding) as the Arbitrators determine appropriate. The determinations with respect to of the Arbitrators shall be final and binding on both the Company and the Executive, and their successors, assignees, heirs and beneficiaries, for purposes of determining the amount payable under this Section 3(l)(i5. All fees and expenses of the Arbitrators (including attorneys’ and accountants’ fees) shall be made by an independent auditor (the “Auditor”) paid borne by the Company. The Auditor shall arbitrators will be a nationally-recognized United States public accounting firm chosen by the Company and approved by you (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing provisions of this Section 3(l)(i)compensated, if it shall be determined that you are entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Change in Control Benefits does extent they are not exceed 110% then members of the Safe Harbor Amount (Board’s Compensation Committee, at the rates at which they would have been compensated for their work as defined below), then no Gross-Up Payment shall be made Committee members in effect immediately prior to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Change in Control Benefits, in the aggregate, equals the Safe Harbor Amount minus $5,000.00. The reduction of the amounts payable hereunder which constitute Change in Control Benefits, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (x) Section 6(b)(iii), (y) Section 6(b)(iv) and (z) Section 6(b)(v). For purposes of reducing the Change in of Control Benefits to the Safe Harbor Amount minus $5,000, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Parachute Value of all Change in Control Benefits to the Safe Harbor Amount minus $5,000, no amounts payable under the Agreement or otherwise shall be reduced pursuant to this Section 3(l)(i). The Company’s obligation to make Gross-Up Payments under this Section 3(1) shall not be conditioned upon your termination of employmentDate. (ii) It is possible that after the determinations and selections made pursuant to Section 3(l)(i) you will receive Change in Control Benefits and Gross-Up Payments that are, in the aggregate, either more or less than the limitations provided in Section 3(l)(i) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then you shall refund the Excess Payment to the Company promptly on demand, together with an additional payment in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of your receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it is determined (x) by arbitration under Section 8 below, (y) by a court of competent jurisdiction, or (z) by the Auditor upon request by you or the Company, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to you within 10 days of such determination together with an additional payment in an amount equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of the Underpayment through the date of such payment and whose denominator is 365. (iii) Any Gross-Up Payment, as determined pursuant to this Section 3(1), shall be paid by the Company and remitted to the relevant tax authorities when such payment is due, provided that in no event shall such payment be made later than the end of your taxable year next following your taxable year in which the Parachute Tax on a Change in Control Benefit are remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim described in Section 3(l)(ii) that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved.

Golden Parachute Tax. In the event it shall be determined that any payment or distribution by the Company to or for your benefit (i) If whether paid or payable or distributed or distributable pursuant to the aggregate terms of all amounts and benefits due to you, under this Agreement or any other plan, program, agreement or arrangement of otherwise) (a “Payment”) would be subject to the Company or any of its Affiliates (or any payments, benefits or entitlements excise tax imposed by any entity that effectuates a related transaction), would constitute “parachute payments” as such term is defined in and under Section 280G of the Code (collectively, “Change in Control Benefits”), and would result in the imposition of excise taxes pursuant to Section 4999 of the CodeCode or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Company will make “Excise Tax”), then you shall be entitled to receive an additional payment to you in an amount (the a “Gross-Up Payment”) in an amount such that, that after payment by you of all taxes, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax (including any interest or penalties imposed with respect to such taxes (including, without limitation, federal, state, local income, employment, excise and other similar taxes, but excluding any taxes ) imposed upon the Payments. The calculations under Section 409A of the Code) (the “Parachute Tax”) on both the Change in Control Benefits and the Gross-Up Payment, you this paragraph will be made in a manner consistent with the same position requirements of Code Sections 280G and 4999, as if no Parachute Tax had been imposedin effect at the time the calculations are made. Any The Gross-Up Payment shall be timely paid to you at the earliest possible time after receiving notice from you, but not later than by the Company on your behalf directly end of the calendar year in which the taxes are paid to the appropriate taxing authorities when duegovernment, but in all events no later than or if an audit or a tax dispute related to the last day Gross-Up Payment occurs, by the end of the calendar year after the calendar year in which the Parachute Tax shall be paid. The determinations with respect to this Section 3(l)(i) shall be made by an independent auditor disputed taxes are paid (or the “Auditor”) paid by the Company. The Auditor shall be a nationally-recognized United States public accounting firm chosen by the Company and approved by you (which approval shall not be unreasonably withheld or delayed). Notwithstanding the foregoing provisions of this Section 3(l)(i), if it shall be determined that you are entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Change in Control Benefits does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Change in Control Benefits, in the aggregate, equals the Safe Harbor Amount minus $5,000.00. The reduction of the amounts payable hereunder which constitute Change in Control Benefits, if applicable, shall be made by reducing the payments and benefits under the following sections in the following order: (x) Section 6(b)(iii), (y) Section 6(b)(iv) and (z) Section 6(b)(v). For purposes of reducing the Change in Control Benefits to the Safe Harbor Amount minus $5,000, only amounts payable under this Agreement (and no other payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Parachute Value of all Change in Control Benefits to the Safe Harbor Amount minus $5,000, no amounts payable under the Agreement or otherwise shall be reduced pursuant to this Section 3(l)(i). The Company’s obligation to make Gross-Up Payments under this Section 3(1) shall not be conditioned upon your termination of employment. (ii) It is possible that year after the determinations and selections made pursuant to Section 3(l)(i) you will receive Change in Control Benefits and Gross-Up Payments that are, in the aggregate, either more or less than the limitations provided in Section 3(l)(i) above (hereafter referred to as an “Excess Payment” or “Underpayment”, respectively). If it is established, pursuant to a final determination of a court or an Internal Revenue Service proceeding that has been finally and conclusively resolved, that an Excess Payment has been made, then you shall refund the Excess Payment to the Company promptly on demand, together with an additional payment in an amount equal to the product obtained by multiplying the Excess Payment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of your receipt of such Excess Payment through the date of such refund and whose denominator is 365. In the event that it is determined (x) by arbitration under Section 8 below, (y) by a court of competent jurisdiction, or (z) by the Auditor upon request by you or the Company, that an Underpayment has occurred, the Company shall pay an amount equal to the Underpayment to you within 10 days of such determination together with an additional payment in an amount equal to the product obtained by multiplying the Underpayment times the applicable annual federal rate (as determined in and under Section 1274(d) of the Code) times a fraction whose numerator is the number of days elapsed from the date of the Underpayment through the date of such payment and whose denominator is 365. (iii) Any Gross-Up Payment, as determined pursuant to this Section 3(1), shall be paid by the Company and remitted to the relevant tax authorities when such payment is due, provided that in no event shall such payment be made later than the end of your taxable year next following your taxable year in which such an audit or dispute is concluded, if no taxes are paid). Please indicate your acceptance of these terms by returning the Parachute Tax on a Change in Control Benefit are remitted original signed and dated version of this agreement to the Internal Revenue Service or any other applicable taxing authority orCompany’s General Counsel. Sincerely, in /s/ IXX XXXXXX Ixx Xxxxxx Chairman, Compensation Committee of the case Board of amounts relating to a claim described in Section 3(l)(ii) that does not result in the remittance Directors By signing, dating and returning this agreement, you accept our terms of any federalemployment. /s/ DXXXX XXX April 7, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved.2014 Dxxxx Xxx Date