Common use of Gross-Up Payments Clause in Contracts

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Agreement) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 4.2(f)) (a “"Payment”") would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Any Gross-Up Payment required under this Section 4.2(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurred. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 4.2(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Any Gross-Up Payment required under this Section 4.2(f) shall be made on the last day of the month in which the Executive remits such taxes to the required taxing authority. In no event will any such Gross-Up Payment be paid to Executive and later than the Payments, end of the Executive’s taxable year following the Executive’s taxable year in which the aggregate, related taxes are remitted to the required taxing authority. The intent of the parties is that the Company shall be reduced responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that If any payment or distribution the value of any benefit received or to be received by the Company to Executive in connection with the Executive’s termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the “Agreement Payments”) or otherwiseof any other plan, but determined without regard to arrangement, or agreement of the Company, its successors, any additional payments required under this Agreement) person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them (“PaymentOther Payments” and, together with the Agreement Payments, the “Payments”)) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Tax Code”) or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of all the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed upon on any Gross-Up Payments as well as any loss of deduction caused by the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 2.1(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurred. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (a1) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that If any payment or distribution the value of any benefit received or to be received by the Company to Executive in connection with the Executive's termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement, or agreement of the Company, its successors, any additional payments required under this Agreement) person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a “Payment”result of the completion of the transactions causing a Change of Control, will become affiliated with any of them ("Other Payments" and, together with the Agreement Payments, the "Payments")) would be subject to the excise tax imposed by Code Section 4999 of the Tax Code or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of all the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed upon on any Gross-Up Payments as well as any loss of deduction caused by the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 4.2(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override Any Gross-Up Payment required under this Section 4.2(f) shall be made on the cut-back provisions April 1 of Section 7.7 each of the Plan. Notwithstanding three years immediately following the foregoing provisions year in which the Date of this Section 13Termination occurred; provided that, if it is determined that the Executive is entitled to in no event will a Gross-Up Payment, but Payment be made later than the end of the Executive’s taxable year following the taxable year in which the Executive remits any Excise Tax. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments do not exceed and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by $25,000 the greatest amount that could be paid or related to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountup Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 2.1(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Any Gross-Up Payment required under this Section 2.1(f) shall be made on the last day of the month in which the Executive remits such taxes to the required taxing authority. In no event will any such Gross-Up Payment be paid to Executive and later than the Payments, end of the Executive’s taxable year following the Executive’s taxable year in which the aggregate, related taxes are remitted to the required taxing authority. The intent of the parties is that the Company shall be reduced responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement Section 4.2 to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 4.2(i)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 of the Code (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Any Gross-Up Payment, but that Payment required under this Section 4.2(i) shall be made on the Payments do not exceed by $25,000 last day of the greatest amount that could month in which the Executive remits such taxes to the required taxing authority. In no event will any such Gross-Up Payment be paid to the Executive such later than the end of the Executive’s taxable year following the Executive’s taxable year in which the related taxes are remitted to the required taxing authority. The intent of the parties is that the receipt of Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments would not give rise to any excise tax (the “Reduced Amount”), then no and Gross-Up Payment shall be made up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall be determined that any payment or distribution the value of any benefit received or to be received by the Company Executive in connection with the Executive's Termination or contingent upon a Change in Control, whether received or to or for the benefit of the Executive (whether paid or payable or distributed or distributable be received pursuant to the terms of this Agreement or otherwiseof any other plan, but determined without regard to any additional payments required under this Agreement) arrangement or agreement (a “Payment”) the "Payments"), would be subject to the excise tax imposed by Code Section 4999 or any interest comparable federal, state or penalties are incurred by the Executive with respect to such local excise tax (such excise taxtaxes, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to or for the benefit of the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") in an amount such that the net amount retained by the Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section VII, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total value of all taxes imposed upon the Payments. The intent of the parties is that the Company shall be solely responsible for and shall pay any Excise Tax on any Payments and the Gross-Up Payment and any income and employment taxes (including including, without limitation, penalties and interest) imposed on any interest or penalties imposed with respect to such taxes but excluding Gross-Up Payments as well as any taxes or interest imposed loss of deduction caused by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the PlanPayment. Notwithstanding the foregoing provisions immediately preceding paragraph, in the event that a reduction to the Payments in respect of this Section 13, if it is determined that the Executive is of 5% or less, but in no event in excess of $500,000, would cause no Excise Tax to be payable, the Executive will not be entitled to a Gross-Up Payment, but that Payment and the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent necessary so that the Payments shall not be subject to the Excise Tax. Unless the Executive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive's rights and entitlements to any benefits or compensation.

Gross-Up Payments. (a1) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that If any payment or distribution the value of any benefit received or to be received by the Company to Executive in connection with the Executive’s termination or for the benefit contingent upon a Change of Control (as hereinafter defined) of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the “Agreement Payments”) or otherwiseof any other plan, but determined without regard to arrangement, or agreement of the Company, its successors, any additional payments required under this Agreement) person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them (“PaymentOther Payments” and, together with the Agreement Payments, the “Payments”)) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Tax Code”) or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income, payroll and/or employment tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of all the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and any Gross-Up Payment and any income, payroll and/or employment taxes (including, without limitation, penalties and interest) imposed upon on any Gross-Up Payments as well as any loss of deduction caused by the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (a1) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that If any payment or distribution the value of any benefit received or to be received by the Company to Executive in connection with the Executive’s termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the “Agreement Payments”) or otherwiseof any other plan, but determined without regard to arrangement, or agreement of the Company, its successors, any additional payments required under this Agreement) person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them (“PaymentOther Payments” and, together with the Agreement Payments, the “Payments”)) would be subject to the excise tax imposed by Code Section 4999 of the Tax Code or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive with respect thereto shall be equal to the total present value of all the Agreement Payments and Other Payments at the time such Payments are to be made. The intent of the parties is that the Company shall be solely responsible for and shall pay, any Excise Tax on any Payments and Gross-Up Payment and any income and employment taxes (including, without limitation, penalties and interest) imposed upon on any Gross-Up Payments as well as any loss of deduction caused by the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Agreement) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Company’s 2004 Performance Incentive Plan and 2007 Performance Incentive Plan, and any similar cut-back provision in any plan adopted by the Company following the date of this Agreement. Any Gross Up Payment shall be paid to Executive on or before the date that is ten (10) days prior to the date when Executive is legally required to remit such taxes. Notwithstanding the foregoing provisions of this Section 137, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Agreement) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Codetaxes), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax excise tax imposed upon the Payments. Such Gross-Up Payment shall be made by the Company by December 31 of the year following the year in which the Executive is required to remit the related Excise Tax. This provision is intended to override the cut-back provisions of Section 7.7 of the Company’s 2004 Performance Incentive Plan. Notwithstanding the foregoing provisions of this Section 13Section, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by Executive in connection with Executive's Termination or distribution by the Company to or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company, its successors, any additional payments required under this Agreementperson whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 or of the Code (any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined in this Subsection IV(e), the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained by Executive, after payment any federal, state, and local income and employment tax and Excise Tax payable by the Executive of all taxes imposed upon the Gross-Up Payment (including Payment(s) provided for by this Subsection IV(e)(i), and any interest interest, penalties or penalties imposed additions to tax payable by Executive with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment thereto shall be equal to the Excise Tax imposed upon on the Payments. This provision is intended to override Payments (the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a "Gross-Up Payment, but Payment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no and Gross-Up Payment shall be made Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-Up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event that it shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this AgreementSection 4.2(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes imposed upon the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes but excluding (and any taxes interest or interest penalties imposed by Section 409A of with respect thereto) and Excise Tax imposed upon the Code)Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the PaymentsPayment. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Any Gross-Up Payment required under this Section 4.2(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurred. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by Executive in connection with Executive’s Termination or distribution by the Company to or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company, its successors, any additional payments required under this Agreementperson whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 or of the Code (any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined in this Subsection IV(e), the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained by Executive, after payment any federal, state, and local income and employment tax and Excise Tax payable by the Executive of all taxes imposed upon the Gross-Up Payment (including Payment(s) provided for by this Subsection IV(e)(i), and any interest interest, penalties or penalties imposed additions to tax payable by Executive with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment thereto shall be equal to the Excise Tax imposed upon on the Payments. This provision is intended to override Payments (the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a "Gross-Up Payment, but Payment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no and Gross-Up Payment shall be made Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-Up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by Executive in connection with Executive's Termination or distribution by the Company to or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Amended Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company, its successors, any additional payments required under this Agreementperson whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Amended Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 or of the Code (any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined in this Subsection IV(e), the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained by Executive, after payment any federal, state, and local income and employment tax and Excise Tax payable by the Executive of all taxes imposed upon the Gross-Up Payment (including Payment(s) provided for by this Subsection IV(e)(i), and any interest interest, penalties or penalties imposed additions to tax payable by Executive with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment thereto shall be equal to the Excise Tax imposed upon on the Payments. This provision is intended to override Payments (the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a "Gross-Up Payment, but Payment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no and Gross-Up Payment shall be made Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-Up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by Executive in connection with Executive's Termination or distribution by the Company to or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Amended Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company, its successors, any additional payments required under this Agreementperson whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 or of the Code (any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined in this Subsection IV(e), the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained by Executive, after payment any federal, state, and local income and employment tax and Excise Tax payable by the Executive of all taxes imposed upon the Gross-Up Payment (including Payment(s) provided for by this Subsection IV(e)(i), and any interest interest, penalties or penalties imposed additions to tax payable by Executive with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the Code), the Executive retains an amount of the Gross-Up Payment thereto shall be equal to the Excise Tax imposed upon on the Payments. This provision is intended to override Payments (the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a "Gross-Up Payment, but Payment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no and Gross-Up Payment shall be made Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by or related to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced AmountGross-Up Payment(s).

Gross-Up Payments. (ai) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in In the event it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by Executive in connection with Executive's Termination or distribution by the Company to or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company, its successors, any additional payments required under this Agreementperson whose actions result in a Change of Control or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) "Other Payments" and, together with the Agreement Payments, the "Payments")), in the opinion of the Tax Consultant (as defined below in Subsection IV(e)(ii)), would be subject to the an excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest other federal, state or penalties are incurred by the Executive with respect to such local excise tax (any such excise or other tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to Executive an additional amount such that the net amount retained by Executive, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state and local income and employment tax and Excise Tax upon the Payment(s) provided for by this Subsection IV(e)(i), and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be entitled equal to receive an additional payment the total present value of the Agreement Payments and Other Payments at the time such Payments are to be made (a “the "Gross-Up Payment”Payment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-Up Payment(s) in an amount such that after payment and any and all income and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-Up Payment(s) as well as any loss of deduction caused by the Executive of all taxes imposed upon or related to the Gross-Up Payment (including any interest or penalties imposed with respect to such taxes but excluding any taxes or interest imposed by Section 409A of the CodePayment(s), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. This provision is intended to override the cut-back provisions of Section 7.7 of the Plan. Notwithstanding the foregoing provisions of this Section 13, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the Payments do not exceed by $25,000 the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any excise tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.