Common use of Gross-Up of Parachute Payments Clause in Contracts

Gross-Up of Parachute Payments. Subject to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with the Company pursuant to Sections 20, 21 or 22, or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or otherwise under the terms of Sections 20, 21 or 22, then a portion of those benefits could be characterized as "excess parachute payments" within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 12 are important, and it is agreed that Employee should not have to bear the burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 12) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a “Gross-Up Payment”), in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to one hundred percent (100%) of the Excise Tax imposed on the Payments. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.

Gross-Up of Parachute Payments. Subject If any payment or benefit to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of which ------------------------------ the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with Executive becomes entitled from the Company pursuant will be subject to Sections 20, 21 or 22, or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below, an additional amount (the "Gross-up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of such payments or otherwise under benefits will be subject to the Excise Tax, and the amount of such Excise Tax, (i) any over payments or benefits received or to be received by the Executive in connection with a Change of Control or his termination of employment, whether pursuant to the terms of Sections 20this Agreement or otherwise (which together with the payments and benefits pursuant to this Agreement, 21 or 22constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, then a portion of those benefits could be characterized as and all "excess parachute payments" within the meaning of Section 280G section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) (after applying paragraph (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. The parties hereto acknowledge that For purposes of determining the protections set forth in this Section 12 are important, and it is agreed that Employee should not have to bear the burden amount of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 12) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a “Gross-Up Payment”), the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in an the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the sate and locality of his residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of his employment, the Executive shall repay to the Company at the time that the amount of such that after payment by Employee reduction in Excise Tax is finally determined the portion of all taxes (including any interest or penalties imposed with respect the Gross-Up Payment attributable to such taxes), including, without limitation, any income taxes reduction (and any interest and penalties imposed with respect thereto) and plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment, Employee retains an Payment being repaid by him if such repayment results in reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment equal in respect of such excess (plus any interest payable with respect to one hundred percent such excess) at the time that the amount of such excess is finally determined. If the amounts of any payments under this Agreement cannot be finally determined on or before the payment date otherwise scheduled for payment, the Company shall pay to the Executive on such date an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the reminder of such payments (100%together with interest at the rate provided in section 1274(b)(2)(B) of the Excise Tax imposed on Code) as soon as the Paymentsamount thereof can be determined. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, excess shall be made constitute a loan by the independent public accounting firm regularly employed Company to the Executive payable on the fifth day after demand by the Company (together with interest at the “Accounting Firm”rate provided in section 1274(b)(2)(B) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"Code), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.

Gross-Up of Parachute Payments. Subject If any payment or benefit to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of which the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with ------------------------------- Executive becomes entitled from the Company pursuant will be subject to Sections 20, 21 or 22, or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below, an additional amount (the "Gross-up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of such payments or otherwise under benefits will be subject to the Excise Tax, and the amount of such Excise Tax, (i) any over payments or benefits received or to be received by the Executive in connection with a Change of Control or his termination of employment, whether pursuant to the terms of Sections 20this Agreement or otherwise (which together with the payments and benefits pursuant to this Agreement, 21 or 22constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, then a portion of those benefits could be characterized as and all "excess parachute payments" within the meaning of Section 280G section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) (after applying paragraph (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. The parties hereto acknowledge that For purposes of determining the protections set forth in this Section 12 are important, and it is agreed that Employee should not have to bear the burden amount of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 12) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a “Gross-Up Payment”), the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in an the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the sate and locality of his residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of his employment, the Executive shall repay to the Company at the time that the amount of such that after payment by Employee reduction in Excise Tax is finally determined the portion of all taxes (including any interest or penalties imposed with respect the Gross-Up Payment attributable to such taxes), including, without limitation, any income taxes reduction (and any interest and penalties imposed with respect thereto) and plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment, Employee retains an Payment being repaid by him if such repayment results in reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment equal in respect of such excess (plus any interest payable with respect to one hundred percent such excess) at the time that the amount of such excess is finally determined. If the amounts of any payments under this Agreement cannot be finally determined on or before the payment date otherwise scheduled for payment, the Company shall pay to the Executive on such date an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the reminder of such payments (100%together with interest at the rate provided in section 1274(b)(2)(B) of the Excise Tax imposed on Code) as soon as the Paymentsamount thereof can be determined. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, excess shall be made constitute a loan by the independent public accounting firm regularly employed Company to the Executive payable on the fifth day after demand by the Company (together with interest at the “Accounting Firm”rate provided in section 1274(b)(2)(B) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"Code), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.

Gross-Up of Parachute Payments. Subject If any payment or benefit to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of which ------------------------------- the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with Executive becomes entitled from the Company pursuant will be subject to Sections 20, 21 or 22, or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below, an additional amount (the "Gross-up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of such payments or otherwise under benefits will be subject to the Excise Tax, and the amount of such Excise Tax, (i) any over payments or benefits received or to be received by the Executive in connection with a Change of Control or his termination of employment, whether pursuant to the terms of Sections 20this Agreement or otherwise (which together with the payments and benefits pursuant to this Agreement, 21 or 22constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, then a portion of those benefits could be characterized as and all "excess parachute payments" within the meaning of Section 280G section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) (after applying paragraph (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. The parties hereto acknowledge that For purposes of determining the protections set forth in this Section 12 are important, and it is agreed that Employee should not have to bear the burden amount of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 12) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a “Gross-Up Payment”), the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in an the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the sate and locality of his residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of his employment, the Executive shall repay to the Company at the time that the amount of such that after payment by Employee reduction in Excise Tax is finally determined the portion of all taxes (including any interest or penalties imposed with respect the Gross-Up Payment attributable to such taxes), including, without limitation, any income taxes reduction (and any interest and penalties imposed with respect thereto) and plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment, Employee retains an Payment being repaid by him if such repayment results in reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment equal in respect of such excess (plus any interest payable with respect to one hundred percent such excess) at the time that the amount of such excess is finally determined. If the amounts of any payments under this Agreement cannot be finally determined on or before the payment date otherwise scheduled for payment, the Company shall pay to the Executive on such date an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the reminder of such payments (100%together with interest at the rate provided in section 1274(b)(2)(B) of the Excise Tax imposed on Code) as soon as the Paymentsamount thereof can be determined. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, excess shall be made constitute a loan by the independent public accounting firm regularly employed Company to the Executive payable on the fifth day after demand by the Company (together with interest at the “Accounting Firm”rate provided in section 1274(b)(2)(B) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"Code), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.

Gross-Up of Parachute Payments. Subject If any payment or benefit to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of which the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with ------------------------------ Executive becomes entitled from the Company pursuant will be subject to Sections 20, 21 or 22, or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G tax imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below, an additional amount (the "Gross-up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this subsection, shall be equal to the Total Payments. For purposes of determining whether any of such payments or otherwise under benefits will be subject to the Excise Tax, and the amount of such Excise Tax, (i) any over payments or benefits received or to be received by the Executive in connection with a Change of Control or his termination of employment, whether pursuant to the terms of Sections 20this Agreement or otherwise (which together with the payments and benefits pursuant to this Agreement, 21 or 22constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, then a portion of those benefits could be characterized as and all "excess parachute payments" within the meaning of Section 280G section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) (after applying paragraph (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. The parties hereto acknowledge that For purposes of determining the protections set forth in this Section 12 are important, and it is agreed that Employee should not have to bear the burden amount of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 12) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a “Gross-Up Payment”), the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in an the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the sate and locality of his residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of his employment, the Executive shall repay to the Company at the time that the amount of such that after payment by Employee reduction in Excise Tax is finally determined the portion of all taxes (including any interest or penalties imposed with respect the Gross-Up Payment attributable to such taxes), including, without limitation, any income taxes reduction (and any interest and penalties imposed with respect thereto) and plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment, Employee retains an Payment being repaid by him if such repayment results in reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment equal in respect of such excess (plus any interest payable with respect to one hundred percent such excess) at the time that the amount of such excess is finally determined. If the amounts of any payments under this Agreement cannot be finally determined on or before the payment date otherwise scheduled for payment, the Company shall pay to the Executive on such date an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the reminder of such payments (100%together with interest at the rate provided in section 1274(b)(2)(B) of the Excise Tax imposed on Code) as soon as the Paymentsamount thereof can be determined. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 12, including whether and when a Gross-Up Payment is required and that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, excess shall be made constitute a loan by the independent public accounting firm regularly employed Company to the Executive payable on the fifth day after demand by the Company (together with interest at the “Accounting Firm”rate provided in section 1274(b)(2)(B) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"Code), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.

Gross-Up of Parachute Payments. Subject to Employee's ongoing employment under terms of this Agreement and in conjunction with all other incentive plans of the Company, the Employee shall be at all times provided adequate protection in connection with various benefits in the event of termination of Employee's employment with the Company pursuant to Sections 2018, 21 19 or 22, 20 or during the Protected Period. If Employee's employment is terminated without cause during a Protected Period or otherwise in connection with a "Change of Control" of the Company, within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or otherwise under the terms of Sections 18, 19 or 20, 21 or 22, then a portion of those benefits could be characterized as "excess parachute payments" within the meaning of Section 280G of the Code. The parties hereto acknowledge that the protections set forth in this Section 12 11 are important, and it is agreed that Employee should not have to bear the burden of the excise tax that might be levied under Section 4999 of the Code or any similar provision of state or federal law, in the event that any portion of the benefits payable to Employee pursuant to this Agreement or the other incentive plans of the Company are treated as an excess parachute payment. The parties, therefore, have agreed as set forth in this Section 12 11: Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution (including income recognized by Employee upon the early vesting of restricted property or upon the exercise of options whose exercise date has been accelerated) by the Company or any other person to, or for the benefit of Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 1211) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any similar provision of state or federal law or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay an additional payment (a b “Gross-Up Payment”), in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on the Gross-Up Payment, Employee retains an amount of the Gross-Up Payment equal to one hundred percent (100%) of the Excise Tax imposed on the Payments. In the event of any dispute as to the applicability or amount of any Gross-Up Payment, all determinations required to be made under this Section 1211, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the independent public accounting firm regularly employed by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and to Employee within thirty (30) Days business days after the receipt of notice from Employee that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm will be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Employee, it shall furnish Employee with a written statement that failure to report the Excise Tax on Employee’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding on the Company and Employee unless and until a final determination is received from the Internal Revenue Service indicating a contrary result. As a result of 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 Gross-Up Payments may not have been made by the Company that should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If the Employee thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Employee, consistent with the maximum limitation stated in paragraph 12(b13(b) above. In the event it is determined by the Accounting Firm that the Gross Payments previously made by the Company exceeded the limitations stated in paragraph 12(b11(b) above, upon written notice from the Company, accompanied by a copy of the Accounting Firm’s calculation of same, the amount of such overpayment shall be promptly paid by the Employee to the Company.