Common use of Parachute Payments Clause in Contracts

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution by the Company or any other person or entity to the Executive or for the Executive’s benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”), would ) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the “Code”) (such excise tax, together with any such interest or penaltiespenalties incurred by the Executive with respect to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to then the Executive an additional payment will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (a “Gross-up Payment”after taking into account federal, state, local and social security taxes): (a) in an amount such that after payment by Executive of all taxes the Payments or (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments“Safe Harbor Amount”). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.15, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the “Accounting Firm”). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment payment, distribution, or distribution provision of a benefit by Company to or for the benefit of Executive, whether paid or payable or payable, distributed or distributable distributable, or provided or to be provided pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive on or as soon as administratively practicable following the day on which the Excise Tax is remitted by or on behalf of Executive (but no later than the end of the taxable year following the year in which the Excise Tax is remitted) an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution by the Company or any other person or entity to the Executive or for the Executive's benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “"Payment”), would ") to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the "Code") (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed incurred by the Executive with respect to such taxesexcise tax, the "Excise Tax"), including any Excise Tax imposed on any Grossthen the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-up Paymenttax amount (after taking into account federal, Executive retains an state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments"Safe Harbor Amount"). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.16, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the "Accounting Firm"). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution by the Company or any other person or entity to the Executive or for the Executive's benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “"Payment”), would ") to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the "Code") (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed incurred by the Executive with respect to such taxesexcise tax, the "Excise Tax"), including any Excise Tax imposed on any Grossthen the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-up Paymenttax amount (after taking into account federal, Executive retains an state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments"Safe Harbor Amount"). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non‑qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non‑qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.16, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the "Accounting Firm"). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that if any payment or distribution by benefit Executive would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”1) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (2) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless’s receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments Executive elects in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive receives a refund of any amount paid by Company with an opinion reasonably acceptable to Executive that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm’s determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event that if any payment or distribution by benefit the Employee would receive from the Company to or for an affiliate of the benefit of Executive, whether paid or payable or distributed or distributable Company pursuant to the terms of this Agreement or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”x) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (y) the Payments. Company largest portion of the Payment, up to and Executive shall make an initial determination as to whether a Gross-up Payment is required including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlessEmployee’s receipt, on an after-tax basis, for any of the greater amount of the Payment notwithstanding that all or some portion of the Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the following order: reduction of cash payments; reduction of employee benefits. The Company shall appoint a nationally recognized independent accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that time by the Company or the Employee) or such other time as requested by the Company or the Employee. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, Executive receives a refund either before or after the application of any amount paid by the Reduced Amount, it shall furnish the Company and the Employee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm’s determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution by the Company or any other person or entity to the Executive or for the Executive’s benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”), would ) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the “Code”) (such excise tax, together with any such interest or penaltiespenalties incurred by the Executive with respect to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to then the Executive an additional payment will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (a “Gross-up Payment”after taking into account federal, state, local and social security taxes): (a) in an amount such that after payment by Executive of all taxes the Payments or (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments“Safe Harbor Amount”). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.16, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the “Accounting Firm”). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, penalties are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to the Executive an additional payment (a “Gross-up Payment”) ), in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify the Company immediately in writing of any claim claims by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten five (5) days of the receipt of such claim. The Company shall notify Executive in writing at least ten five (5) days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, Executive shall cooperate fully with the Company in such action; provided, provided however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed action. If as a result of Company’s action. If, as a result of if the Company’s action with respect to a claim, Executive receives a refund of any amount paid by the Company with respect to such claim, Executive shall promptly pay such refund to the Company. If the Company fails to timely notify Executive Employee whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution benefit by the Company or any other person or entity to the Executive or for the Executive’s benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”), would ) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the “Code”) (such excise tax, together with any such interest or penaltiespenalties incurred by the Executive with respect to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to then the Executive an additional payment will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (a “Gross-up Payment”after taking into account federal, state, local and social security taxes): (a) in an amount such that after payment by Executive of all taxes the Payments or (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments“Safe Harbor Amount”). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.16, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the “Accounting Firm”). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by Company payments to or for the benefit of Executive, whether paid or payable or distributed or distributable you pursuant to the terms of this Agreement or otherwise any payment received by you or paid by the Company on your behalf is treated as contingent on a change of ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company or any Person affiliated with the Company (a “Payment”but only if such payment or other benefit is in connection with your employment relationship with the Company) (collectively, the "Total Value") shall result in you becoming liable for the payment of any excise taxes pursuant to section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") ("Excise Tax"), would you shall be subject entitled to an additional payment equal to the excise tax imposed amount of any Excise Taxes payable by Section you pursuant to section 4999 of the Code or as a result of such payments plus all federal, state and local taxes applicable to the Company's payment of such Excise Taxes, including any interest or penalties additional taxes due under section 4999 of the Code with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred payments made pursuant to as this provision. The intent of this Section 20 is to provide that the “Excise Tax”), Company shall pay to Executive you an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by you after payment by Executive deduction: (a) of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Total Value; and (b) of any Gross-up Paymentexcess tax, Executive retains an amount of federal, state or local income, payroll, and/or other taxes, imposed on the Gross-up Payment Up Payment, shall equal to the Total Value. If you determine that you are liable for an Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claimpayment or other benefit, Executive receives a refund you must promptly so notify the Company in writing. Upon receipt of any amount paid such notice from you, the Company must, within twenty (20) days thereafter, either (i) notify you, in writing, that the Company agrees with your determination of Excise Tax liability, in which case the Company shall become obligated to immediately pay to you the Gross-Up Payment, or (ii) submit to you an opinion, prepared by Company with respect counsel of the Company's choice which counsel is reasonably satisfactory to such claimyou, Executive shall promptly pay such refund to Companythat you are not liable for the Excise Tax (the "Tax Opinion"). If Company fails the Tax Opinion is provided to timely notify Executive whether it will contest such claim or Company determines you and you nevertheless choose not to contest the assertion of the Excise Tax, the Company shall be relieved of its obligation to make the Gross-Up Payment specified hereunder. If you choose to contest the assertion of the Excise Tax after receipt of the Tax Opinion, you may do so with counsel of your choice that is reasonably satisfactory to the Company and the reasonable legal fees and expenses of such claimcontest shall be paid by the Company, on a monthly basis, subject to the Company's receipt of proper documentation therefore. If the Excise Tax is so contested, then the Company shall immediately pay to Executive you the portion Gross-Up Payment upon the earlier of such claimten (10) days after (A) the entry of a final judgment, if anydecree, which it has not previously paid to Executive.or other order by a court of competent jurisdiction that you are liable for the Excise Tax, or (B) a mutual

Parachute Payments. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event that if any payment or distribution by benefit you would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”1) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (2) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlessyour receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments you elect in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and you within fifteen (15) calendar days after the date on which your right to a Payment is triggered (if requested at that time by you or the Company) or such other time as requested by you or the Company. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, Executive receives a refund either before or after the application of any amount paid by the Reduced Amount, it shall furnish the Company and you with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm’s determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, in the event that if any payment or distribution by benefit the Executive would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Section 14 or otherwise (a “Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”1) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (2) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless’s receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments the Executive elects in writing. The Company’s principal independent auditors engaged to audit the Company’s financial statements or such other independent auditors agreed to by the Company and Executive will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within thirty (30) calendar days after the date on which the Executive’s right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or the Executive. If the auditors determine that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, either before or after the application of the Reduced Amount, the auditors shall furnish the Company and the Executive receives a refund of any amount paid by Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyauditors’ determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event that if any payment or distribution by benefit the Employee would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”)) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”1) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (2) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlessEmployee’s receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments the Employee elects in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and the Employee within fifteen (15) calendar days after the date on which the Employee’s right to a Payment is triggered (if requested at that time by the Company or Employee) or such other time as requested by the Company or the Employee. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, Executive receives a refund either before or after the application of any amount paid by the Reduced Amount, it shall furnish the Company and the Employee with an opinion reasonably acceptable to the Employee that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm’s determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment payment, benefit 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 (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to the Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, the Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and the Executive) within ten 10 business days of the receipt of such claim. The Company shall notify the Executive in writing at least ten 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, then the Executive shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Executive receives a refund of any amount paid by the Company with respect to such claim, then the Executive shall promptly pay such refund to the Company. If the Company fails to timely notify the Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive.

Parachute Payments. Notwithstanding anything If the Executive is, in the opinion of a nationally recognized accounting firm jointly selected by the Executive and the Company, required to pay an excise tax on “excess parachute payments” (as defined in Section 280G(b) of the Internal Revenue Code of 1986, as amended (the “Code”)) under Section 4999 of the Code as a result of an acceleration of the vesting of stock options, the Company shall have an absolute and unconditional obligation to pay the Executive in accordance with the terms of this Section 9 the amount of such taxes. In addition, the Company shall have an absolute and unconditional obligation to pay the Executive such additional amounts as are necessary to place the Executive in the exact same financial position that he would have been in if he had not incurred any expected tax liability under Section 4999 of the Code. The determination of the exact amount, if any, of any expected “excess parachute payments” and any expected tax liability under Section 4999 of the Code shall be made by a nationally-recognized independent accounting firm selected by the Executive and the Company. The fees and expenses of such accounting firm shall be paid by the Company. The determination of such accounting firm shall be final and binding on the parties. The Company irrevocably agrees to pay to the contrary Executive, in immediately available funds to an account designated in writing by the Executive, any amounts to be paid under this AgreementSection 9 within two business days after receipt by the Company of written notice from the accounting firm which sets forth such accounting firm’s determination. In addition, in the event that any payment or distribution by Company such payments are not sufficient to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a pay all excise taxes on “Payment”), would be subject to the excise tax imposed by excess parachute payments” under Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, an acceleration of the vesting of options or for any other reason and to place the Executive in the exact same financial position that he would have been in if he had not incurred any expected tax liability under Section 4999 of the Code as a result of Company’s action with respect a change in control, then the Company shall have an absolute and unconditional obligation to a claim, pay the Executive receives a refund of any amount paid by Company with respect such additional amounts as may be necessary to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify excise taxes and place the Executive whether it will contest such claim or Company determines in the exact same financial position that he would have been had he not to contest such claim, then Company shall immediately pay to Executive incurred any tax liability as a result of a change in control under the portion of such claim, if any, which it has not previously paid to ExecutiveCode.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement(a) If any amount, in the event that any payment entitlement or distribution by Company to or for the benefit of Executive, whether paid or payable to Employee or distributed or distributable pursuant to the terms of provided for his benefit under this Agreement and under any other agreement, plan or otherwise program of the Company or any of its affiliates (such payments, entitlements and benefits referred to as a “Payment”), would be ) is subject to the excise tax imposed by Section under Code section 4999 of the Code or any interest similar federal or penalties with respect to such excise tax state law (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the an “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) then notwithstanding anything contained in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal this Agreement to the Excise Tax imposed upon the Payments. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service whichcontrary, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date extent that any or all Payments would be subject to the imposition of any response required with respect an Excise Tax, the Payments shall be reduced (but not below zero) if and to the extent that such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company reduction would result in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlessEmployee retaining a larger amount, on an after-tax basisbasis (taking into account federal, for state and local income taxes and the imposition of the Excise Tax), than if Employee received all of the Payments (such reduced amount hereinafter referred to as the “Limited Payment Amount”). The Company shall determine in its sole discretion the Payments that are reduced or eliminated pursuant to the foregoing. All calculations under this Section 16 shall be made by a nationally recognized accounting firm designated by the Company and reasonably acceptable to Employee (other than the accounting firm that is regularly engaged by any party who has effectuated a change in control) (the “Accounting Firm”). The Company shall pay all fees and expenses of such Accounting Firm. The Accounting Firm shall provide its calculations, together with detailed supporting documentation, both to the Company and Employee within 50 days after the change in control or the date of termination, whichever is later (or such earlier time as is requested by the Company) and, with respect to the Limited Payment Amount, shall deliver its opinion to Employee that he is not required to report any Excise Tax or on his federal income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action tax return with respect to a claimthe Limited Payment Amount (collectively, Executive receives a refund the “Determination”). Within 15 days of Employee’s receipt of the Determination, Employee shall have the right to dispute the Determination (the “Dispute”). The existence of the Dispute shall not in any amount paid by Company way affect the right of Employee to receive the Payments in accordance with respect to such claim, Executive shall promptly pay such refund to Companythe Determination. If there is no Dispute, the Determination by the Accounting Firm shall be final binding and conclusive upon the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executiveand Employee (except as provided in subsection (c) below).

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment payment, benefit 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 (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to the Executive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Up Payment, the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Executive shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Up Payment (or a Gross-up Up Payment in excess of that, if any, initially determined by the Company and the Executive) within ten 10 business days of the receipt of such claim. The Company shall notify the Executive in writing at least ten 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, then the Executive shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Executive receives a refund of any amount paid by the Company with respect to such claim, then the Executive shall promptly pay such refund to the Company. If the Company fails to timely notify the Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive. Notwithstanding anything to the contrary herein, the provisions of Section 7 of the Original Agreement (with respect to Excise Tax gross ups) shall apply with respect to the payment of the First Signing Bonus Payment, Second Signing Bonus Payment and any other payments or benefits, whether pursuant to this Agreement or otherwise, that may be contingent upon the occurrence of the Closing under the Merger Agreement.

Parachute Payments. Notwithstanding anything If any payment, distribution or benefit Executive would receive from the Company or otherwise, but determined without regard to the contrary in any additional payment required under this AgreementSection 3.2, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would (i) constitute a "parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and (ii) be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then Executive shall be entitled to receive from the Company shall pay to Executive an additional payment (a “the "Gross-up Up Payment”") in an amount such that after shall fund the payment by Executive of any Excise Tax on the Payment as well as all income and employment taxes (including imposed on the Gross-Up Payment, any Excise Tax imposed on the Gross-Up Payment and any interest or penalties imposed with respect to such taxes), including any Excise Tax income and employment taxes imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal Up Payment. The accounting firm engaged by the Company for general audit purposes as of the day prior to the Excise Tax imposed upon effective date of the PaymentsChange in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive shall make an initial determination as within fifteen (15) calendar days after the date on which Executive's right to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim triggered (if requested at that time by the Internal Revenue Service whichCompany or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax is payable with respect to a Payment, if successfuleither before or after the application of the Reduced Amount, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by it shall furnish the Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior with an opinion reasonably acceptable to the due date of any response required Executive that no Excise Tax will be imposed with respect to such claim if it plans to contest the claimPayment. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result Any good faith determinations of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.the

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment payment, benefit 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 (a “Payment”), would be subject to the excise tax imposed by Code Section 4999 of the Code 4999, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to the Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, the Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Company and the Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service which, if successful, would require the Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Company and the Executive) within ten 10 business days of the receipt of such claim. The Company shall notify the Executive in writing at least ten 10 business days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Company decides to contest such claim, then the Executive shall cooperate fully with the Company in such action; provided, however, the Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Company’s action. If, as a result of the Company’s action with respect to a claim, the Executive receives a refund of any amount paid by the Company with respect to such claim, then the Executive shall promptly pay such refund to the Company. If the Company fails to timely notify the Executive whether it will contest such claim or the Company determines not to contest such claim, then the Company shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive. Notwithstanding the above provisions of this paragraph 7.6, a Gross-Up Payment shall not be made to the Executive by the Company later than the end of the calendar year following the calendar year in which the excise tax imposed by Code Section 4999 is remitted to the Internal Revenue Service. In addition, reimbursement to the Executive of expenses incurred due to a tax audit or litigation addressing Code Section 4999 tax liability shall not be made by the Company later than the end of the calendar year following the calendar year in which the excise tax imposed by Code Section 4999 is remitted to the Internal Revenue Service, or where as a result of such audit or litigation, no such taxes are remitted, by the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by Company payments to or for the benefit of Executive, whether paid or payable or distributed or distributable you pursuant to the terms of this Agreement or otherwise any payment received by you or paid by the Company on your behalf is treated as contingent on a change of ownership or control of the Company or in the ownership of a substantial portion of the assets of the Company or any Person affiliated with the Company (a “Payment”but only if such payment or other benefit is in connection with your employment relationship with the Company) (collectively, the "Total Value") shall result in you becoming liable for the payment of any excise taxes pursuant to section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") ("Excise Tax"), would you shall be subject entitled to an additional payment equal to the excise tax imposed amount of any Excise Taxes payable by Section you pursuant to section 4999 of the Code or as a result of such payments plus all federal, state and local taxes applicable to the Company's payment of such Excise Taxes, including any interest or penalties additional taxes due under section 4999 of the Code with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred payments made pursuant to as this provision. The intent of this Section 20 is to provide that the “Excise Tax”), Company shall pay to Executive you an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by you after payment by Executive deduction: (a) of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Total Value; and (b) of any Gross-up Paymentexcess tax, Executive retains an amount of federal, state or local income, payroll, and/or other taxes, imposed on the Gross-up Payment Up Payment, shall equal the Total Value. If you determine that you are liable for an Excise Tax with respect to a payment or other benefit, you must promptly so notify the Company in writing. Upon receipt of such notice from you, the Company must, within twenty (20) days thereafter, either (i) notify you, in writing, that the Company agrees with your determination of Excise Tax liability, in which case the Company shall become obligated to immediately pay to you the Gross-Up Payment, or (ii) submit to you an opinion, prepared by counsel of the Company's choice which counsel is reasonably satisfactory to you, that you are not liable for the Excise Tax imposed (the "Tax Opinion"). If the Tax Opinion is provided to you and you nevertheless choose not to contest the assertion of the Excise Tax, the Company shall be relieved of its obligation to make the Gross-Up Payment specified hereunder. If you choose to contest the assertion of the Excise Tax after receipt of the Tax Opinion, you may do so with counsel of your choice that is reasonably satisfactory to the Company and the reasonable legal fees and expenses of such contest shall be paid by the Company, on a monthly basis, subject to the Company's receipt of proper documentation therefore. If the Excise Tax is so contested, then the Company shall pay to you the Gross-Up Payment upon the Payments. Company and Executive shall make an initial earlier of ten (10) days after (A) the entry of a final judgment, decree, or other order by a court of competent jurisdiction that you are liable for the Excise Tax, or (B) a mutual determination as to whether a Gross-up Payment is required of you and the amount Company not to proceed further with the contest. The Company also shall reimburse you at that time for any penalties and interest attributable to any delay in payment of any such Gross-up Paymentthe Excise Tax that results from a decision by you not to pay the Excise Tax liability based upon the Tax Opinion. Executive shall notify Company in writing of any claim by If the Internal Revenue Service which("IRS") notifies you in writing that the Excise Tax will or may be assessed against you, if successfulthe Company provides you with the Tax Opinion specified herein, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, and if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans you choose to contest the claim. If assertion of the Excise Tax, then the Company decides shall obtain and deliver to contest such claim, Executive shall cooperate fully with you an irrevocable standby letter of credit (the "Letter of Credit") issued by a bank acceptable to you and the Company in such action; providedan amount equal to the amount of the Company's potential payment obligation herein, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any computed as if the Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously were paid to Executive.the IRS on the date the Letter of Credit was obtained. Immediately upon the earlier of (1) a determination letter (within the meaning of section 1313 of the Code) that you are not liable for the Excise Tax, or (2) the Company's payment to you of the full amount of its obligation herein, you shall mark xxx

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event (a) If it is determined (as hereafter provided) that by reason of any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable Option vesting occurring pursuant to the terms of this Agreement (or otherwise under any other agreement, plan or program) upon a Change in Control (collectively a “"Payment”), ") the Executive would be subject to the excise tax imposed by Code Section 4999 of (the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise "Parachute Tax”"), Company then the Executive shall pay be entitled to Executive receive an additional payment or payments (a “"Gross-up Up Payment”") in an amount such that that, after payment by the Executive of all taxes (including any interest or penalties Parachute Tax) imposed with respect to such taxes), including any Excise Tax imposed on any upon the Gross-up Up Payment, the Executive retains an amount of the Gross-up Up Payment equal to the Excise Parachute Tax imposed upon the PaymentsPayment. Company (b) Subject to the provisions of Section 8(a) hereof, all determinations required to be made under this Section 8, including whether a Parachute Tax is payable by the Executive and Executive shall make an initial determination as to the amount of such Parachute Tax and whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment, shall be made by the nationally recognized firm of certified public accountants (the "Accounting Firm") used by the Company prior to the Change in Control (or, if such Accounting Firm declines to serve, the Accounting Firm shall be a nationally recognized firm of certified public accountants selected by the Executive). The Accounting Firm shall be directed by the Company or the Executive to submit its preliminary determination and detailed supporting calculations to both the Company and the Executive within 15 calendar days after the determination date, if applicable, and any other such time or times as may be requested by the Company or the Executive. If the Accounting Firm determines that any Parachute Tax is payable by the Executive, the Company shall notify pay the required Gross-Up Payment to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. If the Accounting Firm determines that no Parachute Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Executive with an opinion that he has substantial authority not to report any Parachute Tax on his federal tax return. Any good faith determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company in writing of any claim and the Executive absent a contrary determination by the Internal Revenue Service whichor a court of competent jurisdiction; provided, if successfulhowever, would require that no such determination shall eliminate or reduce the Company's obligation to provide any Gross-Up Payments that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of Code Section 4999 at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 8(f) hereof and the Executive thereafter is required to make a payment of any Parachute Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and the Executive as promptly as possible. Any such Underpayment shall be promptly paid by the Company to, or for the benefit of, the Executive within five business days after receipt of such determination and calculations. (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or the Executive, as the case may 8 9 be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determination contemplated by Section 8(b) hereof. (d) The federal tax returns filed by the Executive (or any filing made by a consolidated tax group which includes the Company) shall be prepared and filed on a basis consistent with the determination of the Accounting Firm with respect to the Parachute Tax payable by the Executive. The Executive shall make proper payment of the amount of any Parachute Tax, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of the Executive's federal income tax return, the Accounting Firm determines in good faith that the amount of the Gross-up Up Payment should be reduced, the Executive shall within five business days pay to the Company the amount of such reduction. (or a Gross-up Payment in excess of that, if any, initially determined by Company e) The fees and Executive) within ten days expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Sections 8(b) and (d) hereof shall be borne by the Company. If such fees and expenses are initially advanced by the Executive, the Company shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefor and reasonable evidence of his payment thereof. (f) In the event that the Internal Revenue Service claims that any payment or benefit received under this Agreement constitutes an "excess parachute payment" within the meaning of Code Section 280G(b)(1), the Executive shall notify the Company in writing of such claim. Company Such notification shall notify be given as soon as practicable but not later than 10 business days after the Executive is informed in writing at least ten days of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the due expiration of the 30 day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of any response required taxes with respect to such claim if it plans to contest the claimis due). If the Company decides notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; (iii) cooperate fully with the Company in good faith in order to effectively contest such actionclaim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly or indirectly all costs and expenses (including including, but not limited to, additional interest and penaltiespenalties and related legal, consulting or other similar fees) incurred in connection with such action contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for and against for any Excise Parachute Tax or income tax, tax or other tax (including interest and penalties with respect thereto, ) imposed as a result of Company’s actionsuch representation and payment of costs and expenses. If(g) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx a result refund, the Company shall advance the amount of Company’s action such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after tax basis, from any Parachute Tax (or other tax including interest and penalties with respect thereto) imposed with respect to a such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statue of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a corporate deduction would be disallowed pursuant to Code 9 10 Section 280G and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive unrelated to matters covered hereto. (h) If, after the receipt by Executive of an amount advanced by the Company in connection with the contest of the Parachute Tax claim, the Executive receives a any refund of any amount paid by Company with respect to such claim, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto); provided, however, if the amount of that refund exceeds the amount advanced by the Company the Executive may retain such excess. If, after the receipt by the Executive of an amount advanced by the Company in connection with a Parachute Tax claim, a determination is made that the Executive shall not be entitled to Company. If Company fails any refund with respect to timely notify Executive whether it will contest such claim or and the Company determines does not notify the Executive in writing of its intent to contest such claim, then Company shall immediately pay to Executive the portion denial of such claim, if any, which it has not previously paid refund prior to Executivethe expiration of 30 days after such determination such advance shall be deemed to be in consideration for services rendered after the Date of Termination. 9.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by the Company to or for the benefit of Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise Agreement, or, including without limitation, pursuant to the vesting and acceleration provisions under the PHH 2005 Equity and Incentive Plan) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to (such excise tax (such excise tax, together with any such interest or penalties, are is hereinafter collectively referred to as the “Excise Tax”), Company then with the consent of Executive, Severance Benefits shall pay be reduced to Executive an additional payment (a “Gross-up Payment”) in an amount such the extent necessary so that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount no portion of the Gross-up Payment equal shall be subject to the Excise Tax imposed upon but only if, by reason of such reduction, the Payments. Company and net after-tax benefit received by Executive shall make an initial determination as exceed the net after-tax benefit that would be received by Executive if no such reduction was made. The “net after-tax benefit” shall equal the total of all Payments, less the Excise Tax. The Company shall retain a nationally recognized accounting firm (the "Accounting Firm") that is reasonably acceptable to whether a Gross-up Payment is Executive (which may be, but will not be required and to be, the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company Company's independent auditors) to make a Gross-up Payment (or a Gross-up Payment in excess determination of that, if any, initially determined by whether the Severance Benefits should be reduced. The Accounting Firm shall submit its determination and detailed supporting calculations to both Executive and the Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten no later than 10 days prior to the due date on which the Severance Benefits are to be paid. If the Accounting Firm determines that the Severance Benefits should be reduced and Executive consents, the Severance Benefits shall be reduced but only to the extent necessary so that no portion of the Payments shall be subject to the Excise Tax, and the Company shall pay such reduced amount to Executive at the time prescribed by Section 1 of the Agreement. If the Accounting Firm determines that none of the Payments, after taking into account any reduction pursuant to this Section 3, constitutes a “parachute payment” within the meaning of Section 280G of the Code, it will, at the same time as it makes such determination, furnish Executive and the Company an opinion that Executive has substantial authority not to report any Excise Tax. Executive and the Company shall each provide the Accounting Firm access to and copies of any response required books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred Accounting Firm in connection with such action the preparation and issuance of the determinations and calculations contemplated by this Section 3. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 3 shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of be borne by the Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event that if any payment or distribution by benefit the Executive would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise ("Payment") would (i) constitute a “Payment”"parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”"), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The "Reduced Amount" shall be either (a “Gross-up Payment”1) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (2) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless's receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting "parachute payments" is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments the Executive elects in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company's principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and the Executive within fifteen (15) calendar days after the date on which the Executive's right to a Payment is triggered (if requested at that time by the Company or Executive) or such other time as requested by the Company or the Executive. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, either before or after the application of the Reduced Amount, it shall furnish the Company and the Executive receives a refund of any amount paid by Company with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm's determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything any other provision of this Agreement to the contrary in this Agreementcontrary, in to the event extent that any payment or distribution by Company of any type to or for the benefit Executive by the Company (or by any affiliate of Executivethe Company, any person or entity who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company’s assets (within the meaning of Section 280G of the Code and the regulations thereunder)), or any affiliate of such person or entity, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentTotal Payments”), would is or will be subject to the excise tax imposed by under Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then the Total Payments shall pay to Executive an additional payment be reduced (a “Gross-up Payment”but not below zero) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal if and to the Excise Tax imposed upon extent that a reduction in the Payments. Company and Executive shall make an initial determination as to whether Total Payments would result in the Executive’s retaining a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlesslarger amount, on an after-tax basisbasis (taking into account federal, state and local income taxes and the Excise Tax), than if the Executive received the entire amount of such Total Payments. The determination of whether the Total Payments shall be reduced and the amount of such reduction shall be determined by an accounting firm selected by the Executive and the Company (which accounting firm’s fees shall be paid for any Excise Tax or income taxby the Company), including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, shall be final and binding upon the Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to and the Company. If Company fails The accounting firm’s decision as to timely notify Executive whether it will contest such claim or Company determines not which of the Total Payments are to contest such claim, then Company shall immediately pay to Executive the portion of such claimbe reduced, if any, which it has shall be made (A) only from the Total Payments that the accounting firm determines reasonably may be characterized as “parachute payments” under Section 280G of the Code; (B) only from the Total Payments that are required to be made in cash, (C) only with respect to any amounts that are not previously paid payable pursuant to Executivea “nonqualified deferred compensation plan” subject to Section 409A of the Code, until those payments have been reduced to zero, and (D) in reverse chronological order, to the extent that any of the Total Payments subject to reduction are made over time (e.g., in installments). In no event, however, shall any of the Total Payments be reduced if and to the extent such reduction would cause a violation of Section 409A of the Code or other applicable law.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in the event that any payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon the Payments. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Executive’s taxable year next following Executive’s taxable year in which Executive remits the related taxes. Company and Executive shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.”

Parachute Payments. Notwithstanding anything to the contrary in this AgreementIf any severance, in the event that any accelerated vesting or other payment or distribution by Company to or for the benefit of Executive, whether paid or payable or distributed or distributable Executive would receive pursuant to a Change in Control from the terms of this Agreement Company or otherwise (a “Payment”), whether under this Agreement under any other agreement, would (i) constitute a “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be reduced to Executive an additional payment the Reduced Amount The “Reduced Amount” shall be either (a “Gross-up Payment”x) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (y) the Payments. Company largest portion, up to and Executive shall make an initial determination as to whether a Gross-up Payment is required including the total, of the Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless’s receipt, on an after-tax basis, of the greater amount of the Payment. The accounting firm engaged by the Company for any general audit purposes as of the day prior to the effective date of the Change in Control shall perform the foregoing calculations. If the accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days before the closing date of the Change in Control (if requested at that time by the Company or Executive) or such other time as requested by the Company or Executive. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, either before or after the application of the Reduced Amount, it shall furnish the Company and Executive· with an opinion reasonably acceptable to Executive receives a refund of any amount paid by Company that no Excise Tax will be imposed with respect to such claimPayment. Any good faith determinations of the accounting firm made hereunder shall be final, Executive shall promptly pay such refund to Company. If binding and conclusive upon the Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to and Executive.

Parachute Payments. Notwithstanding anything Anything in this Agreement to the contrary in this Agreementnotwithstanding, in the event that if any payment or distribution by benefit you would receive from the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”)) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, would and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company then such Payment shall pay be equal to Executive an additional payment the Reduced Amount. The “Reduced Amount” shall be either (a “Gross-up Payment”a) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount the largest portion of the Gross-up Payment equal that would result in no portion of the Payment being subject to the Excise Tax imposed upon or (b) the Payments. Company Payment or a portion thereof after payment of the applicable Excise Tax, whichever amount after taking into account all applicable federal, state and Executive shall make an initial determination as to whether a Gross-up Payment is required local employment taxes, income taxes, and the amount of any such Gross-up Payment. Executive shall notify Company Excise Tax (all computed at the highest applicable marginal rate), results in writing of any claim by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmlessyour receipt, on an after-tax basis, for any of the greatest amount of the Payment. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the order of payments you elect in writing, provided, however, that such election shall be subject to Company approval if made on or after the date on which the event that triggers the Payment occurs. The Company’s principal outside accounting firm will make all determinations hereunder and shall provide its calculations, together with detailed supporting documentation, to the Company and you within 15 calendar days after the date on which your right to a Payment is triggered (if requested at that time by the Company or you) or such other time as requested by the Company or you. If the accounting firm determines that no Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action is payable with respect to a claimPayment, Executive receives a refund either before or after the application of any amount paid by the Reduced Amount, it shall furnish the Company and you with an opinion reasonably acceptable to you that no Excise Tax will be imposed with respect to such claim, Executive shall promptly pay such refund to CompanyPayment. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then The Company shall immediately pay be entitled to Executive rely upon the portion of such claim, if anyaccounting firm’s determinations, which it has not previously paid to Executiveshall be final and binding on all persons.

Parachute Payments. Notwithstanding anything to the contrary in this Agreement, in In the event that any payment or distribution by the Company to or for the benefit of Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise Agreement, or, including without limitation, pursuant to the vesting and acceleration provisions under the PHH 2005 Equity and Incentive Plan) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to (such excise tax (such excise tax, together with any such interest or penalties, are is hereinafter collectively referred to as the “Excise Tax”), Company then with the consent of Executive, Severance Benefits shall pay be reduced to Executive an additional payment (a “Gross-up Payment”) in an amount such the extent necessary so that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an amount no portion of the Gross-up Payment equal shall be subject to the Excise Tax imposed upon but only if, by reason of such reduction, the Payments. Company and net after-tax benefit received by Executive shall make an initial determination as exceed the net after-tax benefit that would be received by Executive if no such reduction was made. The “net after-tax benefit” shall equal the total of all Payments, less the Excise Tax. The Company shall retain a nationally recognized accounting firm (the “Accounting Firm”) that is reasonably acceptable to whether a Gross-up Payment is Executive (which may be, but will not be required and to be, the amount of any such Gross-up Payment. Executive shall notify Company in writing of any claim by the Internal Revenue Service which, if successful, would require Company Company’s independent auditors) to make a Gross-up Payment (or a Gross-up Payment in excess determination of that, if any, initially determined by whether the Severance Benefits should be reduced. The Accounting Firm shall submit its determination and detailed supporting calculations to both Executive and the Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten no later than 10 days prior to the due date on which the Severance Benefits are to be paid. If the Accounting Firm determines that the Severance Benefits should be reduced and Executive consents, the Severance Benefits shall be reduced but only to the extent necessary so that no portion of the Payments shall be subject to the Excise Tax, and the Company shall pay such reduced amount to Executive at the time prescribed by Section 1 of the Agreement. If the Accounting Firm determines that none of the Payments, after taking into account any reduction pursuant to this Section 3, constitutes a “parachute payment” within the meaning of Section 280G of the Code, it will, at the same time as it makes such determination, furnish Executive and the Company an opinion that Executive has substantial authority not to report any Excise Tax. Executive and the Company shall each provide the Accounting Firm access to and copies of any response required books, records, and documents in the possession of Executive or the Company, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred Accounting Firm in connection with such action the preparation and issuance of the determinations and calculations contemplated by this Section 3. The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by this Section 3 shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of be borne by the Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution benefit by the Company or any other person or entity to the Executive or for the Executive’s benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “Payment”), would ) to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the “Code”) (such excise tax, together with any such interest or penaltiespenalties incurred by the Executive with respect to such excise tax, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to then the Executive an additional payment will receive the greatest of the following, whichever gives the Executive the highest net after-tax amount (a “Gross-up Payment”after taking into account federal, state, local and social security taxes): (a) in an amount such that after payment by Executive of all taxes the Payments or (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Executive retains an b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments“Safe Harbor Amount”). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 7.16, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the “Accounting Firm”). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and the Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.EXHIBIT 10.5

Parachute Payments. Notwithstanding anything to If there is a change in ownership or control of the contrary in this Agreement, in the event Company that would cause any payment or distribution by the Company or any other person or entity to the Executive or for the Executive's benefit of Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise) (a “"Payment”), would ") to be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (the "Code") (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), Company shall pay to Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed incurred by the Executive with respect to such taxesexcise tax, the "Excise Tax"), including any Excise Tax imposed on any Grossthen the Executive will receive the greatest of the following, whichever gives the Executive the highest net after-up Paymenttax amount (after taking into account federal, Executive retains an state, local and social security taxes): (a) the Payments or (b) one dollar less than the amount of the Gross-up Payment equal Payments that would subject the Executive to the Excise Tax imposed upon (the Payments"Safe Harbor Amount"). Company If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments constitutes non-qualified deferred compensation (within the meaning of Section 409A of the Code), then the reduction shall occur in the manner the Executive shall make elects in writing prior to the date of payment. If any Payment constitutes non-qualified deferred compensation or if the Executive fails to elect an initial determination as order, then the Payments to be reduced will be determined in a manner which has the least economic cost to the Executive and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to the Executive, until the reduction is achieved. All determinations required to be made under this Section 8.15, including whether a Gross-up Payment and when the Safe Harbor Amount is required and the amount of any the reduction of the Payments and the assumptions to be utilized in arriving at such Gross-up Payment. Executive determination, shall notify Company in writing of any claim be made by a certified public accounting firm designated by the Internal Revenue Service which, if successful, would require Company to make a Gross-up Payment (or a Gross-up Payment in excess the "Accounting Firm"). All fees and expenses of that, if any, initially determined the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon Company and Executive) within ten days of the receipt of such claim. Company shall notify Executive in writing at least ten days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If Company decides to contest such claim, Executive shall cooperate fully with Company in such action; provided, however, Company shall bear and pay directly or indirectly all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of Company’s action. If, as a result of Company’s action with respect to a claim, Executive receives a refund of any amount paid by Company with respect to such claim, Executive shall promptly pay such refund to Company. If Company fails to timely notify Executive whether it will contest such claim or Company determines not to contest such claim, then Company shall immediately pay to Executive the portion of such claim, if any, which it has not previously paid to Executive.