Common use of Parachute Gross-Up Clause in Contracts

Parachute Gross-Up. In the event that the aggregate of all payments or benefits made or provided to, or that may be made or provided to, the Executive under this Agreement and under all other plans, programs and arrangements of the Company (the “Aggregate Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code, the Company shall pay to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes an excess parachute payment and, if so, the amount to be provided to the Executive and the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on the firm to serve as the Auditor, then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. Notwithstanding the foregoing, in the event that the amount of the Executive’s Excise Tax liability is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Service. The Executive and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Executive in connection therewith shall be paid by the Company promptly upon notice of demand from the Executive.

Parachute Gross-Up. In The sole shareholder of the event that Company has ------------------ previously approved the aggregate making of all payments due under or benefits made or provided to, or that may be made or provided topursuant to this Agreement after having received full disclosure of all material facts concerning such payments. As a result, the Executive under provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") are expected to be inapplicable. Notwithstanding anything to the contrary in this Agreement and under all in addition to any other planscompensation or other amount payable by the Company to the Executive pursuant to this Agreement or otherwise, programs and arrangements if it shall be determined that, notwithstanding such shareholder approval, any payment or distribution by the Company to or for the benefit of the Executive, pursuant to the terms of this Agreement or otherwise or resulting from the accelerated vesting of shares of common stock or options to acquire common stock of the Company (the “Aggregate a "Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code"), the Company shall pay are subject to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable Code, or any interest or penalties with respect to such Aggregate excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), 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 on the Gross-Up Payment, (including any interest or penalties imposed with respect to such taxes, and any Excise Tax imposed upon the Gross-Up Payment), the Executive retains an additional amount which, after of the imposition of all income and excise taxes thereon, is Gross-Up Payment equal to the Excise Tax on imposed upon the Aggregate PaymentPayments. The determination of whether If the Aggregate Payment constitutes an excess parachute payment and, if so, Excise Tax is determined to exceed the amount to be provided to the Executive and taken into account hereunder at the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf termination of the Company Executive's employment or otherwise (including by reason of any affiliate thereof. If payment the Executive and the Company existence or amount of which cannot agree on be determined at the firm to serve as time of the AuditorGross-Up Payment), then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the accounting firm Executive with respect to serve as such excess) at the Auditor. Notwithstanding the foregoing, in the event time that the amount of the Executive’s Excise Tax liability such excess is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Servicefinally determined. The Executive and the Company shall each reasonably cooperate with each the other in connection with any proceeding administrative or claim relating to judicial proceedings concerning the existence or amount of liability for Excise TaxTax with respect to the Payments. All determinations required to be made under this Section, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the Company's independent accountants. If the Internal Revenue Service determines that Excise Tax is larger than the amount calculated by the Company's accountants, and all expenses incurred by the Company does not contest such determination and prevail in such contest at its own expense, the Gross-Up Payment due the Executive in connection therewith shall be recalculated and any additional amounts owed Executive shall be promptly paid by the Company promptly upon notice of demand from the Executiveto him.

Parachute Gross-Up. In the event that the aggregate of all payments or benefits made or provided to, or that may be made or provided to, the Executive under this Agreement and under all other plans, programs and arrangements of the Company (the “Aggregate Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code, the Company shall pay to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes an excess parachute payment and, if so, the amount to be provided to the Executive and the time of payment pursuant to this Section 13(d) 15 shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on the firm to serve as the Auditor, then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. Notwithstanding the foregoing, in the event that the amount of the Executive’s Excise Tax liability is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) 15 has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d)15, the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Service. The Executive and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Executive in connection therewith shall be paid by the Company promptly upon notice of demand from the Executive.

Parachute Gross-Up. In the event that the aggregate of all If Executive becomes entitled to any payments or benefits made whether pursuant to the terms of or provided toby reason of this Agreement or any other plan, arrangement, agreement, policy or program (including without limitation any deferred stock unit, restricted stock, stock option, stock appreciation right or similar right, or that may be made the lapse or provided totermination of any restriction on the vesting or exercisability of any of the foregoing) with the Company, any successor to the Executive under this Agreement and under Company or to all other plans, programs and arrangements or a part of the business or assets of the Company (the “Aggregate Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Codewhether direct or indirect, the Company shall pay to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable with respect to such Aggregate Paymentpurchase, an additional amount whichmerger, after the imposition of all income consolidation, spin off, or otherwise and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination regardless of whether the Aggregate Payment constitutes an excess parachute such payment and, if so, the amount to be provided to the Executive and the time of payment pursuant to this Section 13(d) shall be is made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way or on behalf of the Company or such successor) or any affiliate thereof. If person whose actions result in a Change of Control or any person affiliated with the Company or such persons (in the aggregate, "Payments" or singularly, "Payment"), which Payments are reasonably determined by an accounting firm mutually agreed upon by the Executive and the Company cannot agree on ("Accountant") (which agreement neither party shall unreasonably withhold) to be subject to the firm tax imposed by Section 4999 or any successor provision of the Code or any similar state or local tax, or any interest or penalties are incurred by Executive with respect to serve such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Auditor"Excise Tax"), then the Executive and the Company shall each select one accounting firm pay Executive an additional amount ("Gross-Up Payment") such that the net amount retained by Executive, after deduction or payment of (i) any Excise Tax on Payments, (ii) any federal, state and those two firms local income or employment tax and Excise Tax upon the payment provided for by this Section, and (iii) any additional interest and penalties imposed because the Excise Tax is not paid when due, shall jointly select be equal to the accounting firm full amount of the Payments. The Company and Executive shall use their reasonable efforts to serve as cause the AuditorAccountant to complete its calculation at least ten (10) days prior to the time any Excise Tax is due. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rates of taxation in the applicable state and locality with respect to which Executive is subject to tax on the date the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment shall be paid to the Executive within five (5) days from the earlier of (i) the issuance by the Internal Revenue Service of a notice stating in effect that an Excise Tax is due with respect to the Payments or (ii) the receipt by the Company of a written statement by the Accountant of the amount of the Gross-Up Payments. Notwithstanding the foregoing, in the event that the amount of the Executive’s Excise Tax liability is subsequently determined to be greater than if the Excise Tax liability with respect to which any initial payment is determined by the Internal Revenue Service or the Accountant subsequent to the Executive under this Section 13(d) has been madepayment set forth in the preceding sentence to exceed the amount taken into account in determining the Gross-Up Payment calculated at such time, the Company shall pay within ten (10) days after the time of such determination the amount by which the recalculated Gross-Up Payment exceeds the Gross-Up Payment paid pursuant to the preceding sentence. Following payment to Executive an additional amount (grossed up for all taxes) of any Gross-Up Payment, including pursuant to the immediately preceding sentence, Executive shall reasonably cooperate with respect to such additional Excise Tax (the Company, at its sole cost and any interest expense and penalties thereon) at the time and in the amount reasonably determined with full indemnification by the Auditor. SimilarlyCompany, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Service. The Executive and as the Company shall cooperate with each other reasonably request in connection with efforts to obtain a refund of any proceeding or claim relating Excise Tax which the Company has a reasonable basis to the existence or amount of liability for Excise Tax, and all expenses incurred by the Executive in connection therewith challenge. Any such refund so obtained shall be paid by Executive to the Company promptly upon notice of demand from the ExecutiveCompany.

Parachute Gross-Up. In The shareholder of the event that Company with more ------------------ than 75% of the aggregate voting power of all outstanding stock of the Company has previously approved the making of all payments due under or benefits made pursuant to this Agreement or provided to, resulting from the accelerated vesting of shares of common stock or that may be made or provided tooptions to acquire common stock of the Company after having received full disclosure of all material facts concerning such payments. As a result, the Executive under provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") are expected to be inapplicable. Notwithstanding anything to the contrary in this Agreement and under all in addition to any other planscompensation or other amount payable by the Company to the Executive pursuant to this Agreement or otherwise, programs and arrangements if it shall be determined that, notwithstanding such shareholder approval, any payment or distribution by the Company to or for the benefit of the Executive, pursuant to the terms of this Agreement or otherwise or resulting from the accelerated vesting of shares of common stock or options to acquire common stock of the Company (the “Aggregate a "Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code"), the Company shall pay are subject to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable Code, or any interest or penalties with respect to such Aggregate excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), 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 on the Gross-Up Payment, (including any interest or penalties imposed with respect to such taxes, and any Excise Tax imposed upon the Gross-Up Payment), the Executive retains an additional amount which, after of the imposition of all income and excise taxes thereon, is Gross-Up Payment equal to the Excise Tax on imposed upon the Aggregate PaymentPayments. The determination of whether If the Aggregate Payment constitutes an excess parachute payment and, if so, Excise Tax is determined to exceed the amount to be provided to the Executive and taken into account hereunder at the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf termination of the Company Executive's employment or otherwise (including by reason of any affiliate thereof. If payment the Executive and the Company existence or amount of which cannot agree on be determined at the firm to serve as time of the AuditorGross-Up Payment), then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the accounting firm Executive with respect to serve as such excess) at the Auditor. Notwithstanding the foregoing, in the event time that the amount of the Executive’s Excise Tax liability such excess is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Servicefinally determined. The Executive and the Company shall each reasonably cooperate with each the other in connection with any proceeding administrative or claim relating to judicial proceedings concerning the existence or amount of liability for Excise TaxTax with respect to the Payments. All determinations required to be made under this Section, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the Company's independent accountants. If the Internal Revenue Service determines that Excise Tax is larger than the amount calculated by the Company's accountants, and all expenses incurred the Company does not contest such determination and prevail in such contest at its own expense, the Gross-Up Payment due the Executive shall be recalculated and any additional amounts owed Executive shall be promptly paid to him. If the Company does contest such determination and prevail in such contest, or if the Company obtains a private letter ruling which holds that the Excise Taxes are not payable or are less than the amount previously determined to be owed by the Company's accountants, the Executive in connection therewith shall be paid by promptly repay to the Company promptly upon notice any excess of demand from the ExecutiveGross-Up Payment previously made to the Executive over the amount required to have been paid to him.

Parachute Gross-Up. In The sole shareholder of the event that Company has previously approved the aggregate making of all payments due under or benefits made or provided to, or that may be made or provided topursuant to this Agreement after having received full disclosure of all material facts concerning such payments. As a result, the Executive under provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) are expected to be inapplicable. Notwithstanding anything to the contrary in this Agreement and under all in addition to any other planscompensation or other amount payable by the Company to the Executive pursuant to this Agreement or otherwise, programs and arrangements if it shall be determined that, notwithstanding such shareholder approval, any payment or distribution by the Company to or for the benefit of the Executive, pursuant to the terms of this Agreement or otherwise or resulting from the accelerated vesting of shares of common stock or options to acquire common stock of the Company (the a “Aggregate Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code), the Company shall pay are subject to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code Code, or any interest or penalties 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”), the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) is payable in an amount such that after payment by the Executive of all taxes on the Gross-Up Payment, (including any interest or penalties imposed with respect to such Aggregate taxes, and any Excise Tax imposed upon the Gross-Up Payment), the Executive retains an additional amount which, after of the imposition of all income and excise taxes thereon, is Gross-Up Payment equal to the Excise Tax on imposed upon the Aggregate PaymentPayments. The determination of whether If the Aggregate Payment constitutes an excess parachute payment and, if so, Excise Tax is determined to exceed the amount to be provided to the Executive and taken into account hereunder at the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf termination of the Company Executive’s employment or otherwise (including by reason of any affiliate thereof. If payment the Executive and the Company existence or amount of which cannot agree on be determined at the firm to serve as time of the AuditorGross-Up Payment), then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the accounting firm Executive with respect to serve as such excess) at the Auditor. Notwithstanding the foregoing, in the event time that the amount of the Executive’s Excise Tax liability such excess is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Servicefinally determined. The Executive and the Company shall each reasonably cooperate with each the other in connection with any proceeding administrative or claim relating to judicial proceedings concerning the existence or amount of liability for Excise TaxTax with respect to the Payments. All determinations required to be made under this Section, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the Company’s independent accountants. If the Internal Revenue Service determines that Excise Tax is larger than the amount calculated by the Company’s accountants, and all expenses incurred by the Company does not contest such determination and prevail in such contest at its own expense, the Gross-Up Payment due the Executive in connection therewith shall be recalculated and any additional amounts owed Executive shall be promptly paid by the Company promptly upon notice of demand from the Executiveto him.

Parachute Gross-Up. In The shareholder of the event that Company with more than ------------------ 75% of the aggregate voting power of all outstanding stock of the Company has previously approved the making of all payments due under or benefits made pursuant to this Agreement or provided to, resulting from the accelerated vesting of shares of common stock or that may be made or provided tooptions to acquire common stock of the Company after having received full disclosure of all material facts concerning such payments. As a result, the Executive under provisions of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") are expected to be inapplicable. Notwithstanding anything to the contrary in this Agreement and under all in addition to any other planscompensation or other amount payable by the Company to the Executive pursuant to this Agreement or otherwise, programs and arrangements if it shall be determined that, notwithstanding such shareholder approval, any payment or distribution by the Company to or for the benefit of the Executive, pursuant to the terms of this Agreement or otherwise or resulting from the accelerated vesting of shares of common stock or options to acquire common stock of the Company (the “Aggregate a "Payment”) is determined to constitute an “excess parachute payment,” as such term is defined in Section 280G(b) of the Internal Revenue Code"), the Company shall pay are subject to the Executive prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code (“Excise Tax”) is payable Code, or any interest or penalties with respect to such Aggregate excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), 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 on the Gross-Up Payment, (including any interest or penalties imposed with respect to such taxes, and any Excise Tax imposed upon the Gross-Up Payment), the Executive retains an additional amount which, after of the imposition of all income and excise taxes thereon, is Gross-Up Payment equal to the Excise Tax on imposed upon the Aggregate PaymentPayments. The determination of whether If the Aggregate Payment constitutes an excess parachute payment and, if so, Excise Tax is determined to exceed the amount to be provided to the Executive and taken into account hereunder at the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf termination of the Company Executive's employment or otherwise (including by reason of any affiliate thereof. If payment the Executive and the Company existence or amount of which cannot agree on be determined at the firm to serve as time of the AuditorGross-Up Payment), then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the accounting firm Executive with respect to serve as such excess) at the Auditor. Notwithstanding the foregoing, in the event time that the amount of the Executive’s Excise Tax liability such excess is subsequently determined to be greater than the Excise Tax liability with respect to which any initial payment to the Executive under this Section 13(d) has been made, the Company shall pay to the Executive an additional amount (grossed up for all taxes) with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to the Executive has been made under this Section 13(d), the Executive shall refund to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid to the Internal Revenue Servicefinally determined. The Executive and the Company shall each reasonably cooperate with each the other in connection with any proceeding administrative or claim relating to judicial proceedings concerning the existence or amount of liability for Excise TaxTax with respect to the Payments. All determinations required to be made under this Section, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by the Company's independent accountants. If the Internal Revenue Service determines that Excise Tax is larger than the amount calculated by the Company's accountants, and all expenses incurred the Company does not contest such determination and prevail in such contest at its own expense, the Gross-Up Payment due the Executive shall be recalculated and any additional amounts owed Executive shall be promptly paid to her. If the Company does contest such determination and prevail in such contest, or if the Company obtains a private letter ruling which holds that the Excise Taxes are not payable or are less than the amount previously determined to be owed by the Company's accountants, the Executive in connection therewith shall be paid by promptly repay to the Company promptly upon notice any excess of demand from the ExecutiveGross-Up Payment previously made to the Executive over the amount required to have been paid to her.

Parachute Gross-Up. (a) In the event that the aggregate of all Executive shall become entitled to payments or and/or benefits made or provided to, or that may be made or provided to, the Executive under by this Agreement and under all or any other plansamounts in the “nature of compensation” (whether pursuant to the terms of this Agreement or any other plan, programs and arrangements arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (collectively the “Company Payments”), and such Company Payments will be subject to the tax (the “Aggregate PaymentExcise Tax”) is determined to constitute an “excess parachute payment,” as such term is defined in imposed by Section 280G(b) 4999 of the Internal Revenue Code, Code (and any similar tax that may hereafter be imposed by any taxing authority) the Company shall pay to the Executive prior to at the time any excise tax imposed by Section 4999 of the Internal Revenue Code specified in subsection (“Excise Tax”d) is payable with respect to such Aggregate Payment, below an additional amount which(the “Gross-up Payment”) such that the net amount retained by the Executive, after the imposition deduction of all income and excise taxes thereon, is equal to the any Excise Tax on the Aggregate Payment. The determination of whether Company Payments and any U.S. federal, state, and for local income or payroll tax upon the Aggregate Gross-up Payment constitutes an excess parachute payment andprovided for by this paragraph (a), if sobut before deduction for any U.S. federal, state, and local income or payroll tax on the amount to Company Payments, shall be provided equal to the Executive and the time of payment pursuant to this Section 13(d) shall be made by an independent auditor (the “Auditor”) selected jointly by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on the firm to serve as the Auditor, then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the AuditorPayments. Notwithstanding the foregoing, if the then present aggregate value of the Company Payments (calculated in accordance with the event that principles of Section 280G of the amount Code and the regulations promulgated thereunder) does not exceed 110% of the “Safe Harbor Amount” (which shall be 2.99 times the Executive’s Excise Tax liability is subsequently determined to be greater than “base amount” within the Excise Tax liability with respect to which any initial payment to meaning of Section 280G(b)(3) of the Executive under this Section 13(d) has been madeCode), then the Company shall not pay the Executive a Gross-up Payment, and the Company Payments (whether due pursuant to the Executive an additional amount (grossed up for all taxesterms of this Agreement or any other plan, arrangement or agreement with the Company) with respect to such additional Excise Tax (and any interest and penalties thereon) at shall be reduced so that the time and then present aggregate value of the Company Payments equals the Safe Harbor Amount. The reduction of the Company Payments, if applicable, shall be effected in the amount reasonably determined by the Auditor. Similarly, if the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any prior payment to following order (unless the Executive has been made under this Section 13(d), the Executive shall refund elects another method of reduction by written notice to the Company the excess amount received, after reduction for any nonrefundable tax, penalties and/or interest incurred by the Executive in connection with the receipt of such excess, and such refund shall be paid promptly after the Executive has received any corresponding refund of excess Excise Tax paid prior to the Internal Revenue Service. The Executive and the Company shall cooperate with each Change in Control): (i) any cash severance benefits based on a multiple of Base Salary or annual incentive compensation; (ii) any other in connection with any proceeding or claim relating cash amounts payable to the existence or amount Executive; (iii) any benefits valued as parachute payments; (iv) acceleration of liability vesting of any stock option for Excise Tax, which the exercise price exceeds the then fair market value of the underlying stock; and all expenses incurred (v) acceleration of vesting of any equity award not covered by the Executive in connection therewith shall be paid by the Company promptly upon notice of demand from the Executivesubsection (iv).