Common use of Payment Following a Change in Control Clause in Contracts

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control CIC Termination and if the aggregate of all payments or of benefits made or provided to the Executive under the Employment Agreement Section 9(e) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined deemed in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer Company shall pay to the Executive, prior to the time any an excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 9(h) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate Affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to (but, subject to Section 12.5(f) above, not later than two and one-half months after the Change in Control) the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“Excise Tax"”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made not later than sixty (60) days following each Change in Control by an independent auditor (the "“Auditor"”) jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the this Employment Agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100120% of the Excise Tax on the Aggregate Payment. Payment The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the this Employment Agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount (the "Gross-Up Payment") which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control CIC Termination and if the aggregate of all payments or of benefits made or provided to the Executive under the Employment Agreement Section 9(e) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined deemed in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer Company shall pay to the Executive, prior to the time any an excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 9(h) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Internal Revenue Code"”), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“Excise Tax"”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "“Auditor"”) jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control CIC Termination and if the aggregate of all payments or of benefits made or provided to the Executive under the Employment Agreement Section 9(e) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined deemed in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer Company shall pay to the Executive, prior to the time any an excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 9(g) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of follows a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement Section 11(f) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, "parachute payment" (as such term is defined in Code Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code")), the Employer Company shall pay to the Executive, prior to the time any excise tax imposed by Code Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment parachute payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 11(h) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.. i.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result for one of a Change the reasons set forth in Control Section 10(e) above and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement Section 10 (e) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer Company shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 10(g) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to (but, subject to Section 12.5(f) above, not later than two and one-half months after the Change in Control), the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“Excise Tax"”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made not later than sixty (60) days following each Change in Control by an independent auditor (the "“Auditor"”) jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to (but, subject to Section 12.5(d) above, not later than two and one-half months after the Change in Control) the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“ Excise Tax"Tax ”) is payable with respect to such Aggregate Payment, an additional amount (the “ Gross-Up Payment ”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made not later than sixty (60) days following each Change in Control by an independent auditor (the "Auditor"“ Auditor ”) jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of follows a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement Section 11(f) above and under all other plans and programs of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, "parachute payment" (as such term is defined in Code Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code")), the Employer Company shall pay to the Executive, prior to the time any excise tax imposed by Code Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment parachute payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 11(h) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.. (i)

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment this Agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Internal Revenue Code"”), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“Excise Tax"”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "“Auditor"”) jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount (the "Gross-Up Payment") which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement this agreement and under all other plans and programs of the Employer (the "“Aggregate Payment"”) is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Internal Revenue Code"”), the Employer shall pay to the Executive, prior to (but, subject to Section 12.5(e) above, not later than thirty (30) days after the Change in Control) the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("“Excise Tax"”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) which, after the imposition of all excise, federal, state and local income taxes on the Aggregate Payment and excise taxes thereonthe Gross-Up Payment, is enables the Executive to retain a total amount equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made in writing not later than sixty (60) days following each Change in Control by an independent auditor (the "“Auditor"”) jointly selected by the Employer and the Executive and paid for by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the this Employment Agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100120% of the Excise Tax on the Aggregate Payment. Payment The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.affiliate

Payment Following a Change in Control. In the event that the termination of the Executive's employment is as a result of a Change in Control and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement and under all other plans and programs of the Employer (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), the Employer shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% one-half of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection shall be made by an independent auditor (the "Auditor") jointly selected by the Employer and the Executive and paid by the Employer. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer or any affiliate thereof. If the Executive and the Employer cannot agree on the firm to serve as the Auditor, then the Executive and the Employer shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.

Payment Following a Change in Control. In the event that If the termination of the Executive's employment is as a result of a Change in Control pursuant to Section 11(f) above, and the aggregate of all payments or benefits made or provided to the Executive under the Employment Agreement Section 11(f) above and under all other plans and plans, programs and/or arrangements of the Employer Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, "parachute payment" (as such term is defined in Code Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code")), the Employer Company shall pay to the Executive, prior to the time any excise tax imposed by Code Section 4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to 100% of the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a Parachute Payment parachute payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this subsection Section 11(j) shall be made by an independent auditor (the "Auditor") jointly selected by the Employer Company and the Executive and paid by the EmployerCompany. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Employer Company or any affiliate thereof. If the Executive and the Employer Company cannot agree on the firm to serve as the Auditor, then the Executive and the Employer Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor.