Common use of Tax Consideration Clause in Contracts

Tax Consideration. (i) In the event that the aggregate of all payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of the 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 "Code"), the Company shall pay to the Executive an additional amount (the "Gross-Up Amount"), prior to the time any excise tax ("Excise Tax") is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, after the imposition of all excise, federal, state and local income taxes, enables the Executive to retain a total amount equal to the Aggregate Payment prior to the payment of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the amount of the Gross-Up Amount to be paid to the Executive, if any, and the determination of the Safe Harbor Amount, if applicable, shall be made in good faith by the by the Company's regular outside auditors (the "Accounting Firm"); provided, however, that such Accounting Firm presents its rationale and supporting calculations to the Executive upon his request and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen by the Executive who present reasonable critiques of the determination. If a dispute over the methodology or conclusions of the Accounting Firm cannot be resolved between the parties, an impartial accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm incurred in connection with the retention of the Accounting Firm pursuant to this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained, the additional accounting firm, incurred in connection with the resolution of any disputes pursuant to this Section 5(f) shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code at the time of the determination by the Accounting Firm, the parties hereto acknowledge and agree that it is possible that the Company will have paid a Gross-Up Amount that exceeds the amount that the Company should have paid pursuant to this Section 5(f) (the "Overpayment") or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "Underpayment"). In the event the Accounting Firm, in a written opinion delivered to the Company and to the Executive, determines that, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive, which the Accounting Firm believes has a high probability of success, an Overpayment has been made, then any such Overpayment shall, to the extent permitted under applicable law (including Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to the Executive which the Executive shall promptly repay to the Company together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code; provided, however, the Executive may contest any such determination by the Accounting Firm at his own expense. In the event the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code.

Tax Consideration. (i) In the event that the aggregate of all payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of the 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 "“Code"”), the Company shall pay to the Executive an additional amount (the "“Gross-Up Amount"”), prior to the time any excise tax ("“Excise Tax"”) is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, after the imposition of all excise, federal, state and local income taxes, enables the Executive to retain a total amount equal to the Aggregate Payment prior to the payment of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the amount of the Gross-Up Amount to be paid to the Executive, if any, and the determination of the Safe Harbor Amount, if applicable, shall be made in good faith by the by the Company's ’s regular outside auditors (the "“Accounting Firm"”); provided, however, that such Accounting Firm presents its rationale and supporting calculations to the Executive upon his request and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen by the Executive who present reasonable critiques of the determination. If a dispute over the methodology or conclusions of the Accounting Firm cannot be resolved between the parties, an impartial accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm incurred in connection with the retention of the Accounting Firm pursuant to this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained, the additional accounting firm, incurred in connection with the resolution of any disputes pursuant to this Section 5(f) shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code at the time of the determination by the Accounting Firm, the parties hereto acknowledge and agree that it is possible that the Company will have paid a Gross-Up Amount that exceeds the amount that the Company should have paid pursuant to this Section 5(f) (the "“Overpayment"”) or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "“Underpayment"”). In the event the Accounting Firm, in a written opinion delivered to the Company and to the Executive, determines that, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive, which the Accounting Firm believes has a high probability of success, an Overpayment has been made, then any such Overpayment shall, to the extent permitted under applicable law (including Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to the Executive which the Executive shall promptly repay to the Company together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code; provided, however, the Executive may contest any such determination by the Accounting Firm at his own expense. In the event the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code.

Tax Consideration. (i) In the event that the aggregate of all payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of the 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 "“Code"”), the Company shall pay to the Executive an additional amount (the "“Gross-Up Amount"”), prior to the time any excise tax ("“Excise Tax"”) is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, after the imposition of all excise, federal, state and local income taxes, enables the Executive to retain a total amount equal to the Aggregate Payment prior to the payment of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "“Safe Harbor Amount"”), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the amount of the Gross-Up Amount to be paid to the Executive, if any, and the determination of the Safe Harbor Amount, if applicable, shall be made in good faith by the by the Company's ’s regular outside auditors (the "“Accounting Firm"”); provided, however, that such Accounting Firm presents its rationale and supporting calculations to the Executive upon his request and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen by the Executive who present reasonable critiques of the determination. If a dispute over the methodology or conclusions of the Accounting Firm cannot be resolved between the parties, an impartial accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm incurred in connection with the retention of the Accounting Firm pursuant to this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained, the additional accounting firm, incurred in connection with the resolution of any disputes pursuant to this Section 5(f) shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code at the time of the determination by the Accounting Firm, the parties hereto acknowledge and agree that it is possible that the Company will have paid a Gross-Up Amount that exceeds the amount that the Company should have paid pursuant to this Section 5(f) (the "“Overpayment"”) or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "“Underpayment"”). In the event the Accounting Firm, in a written opinion delivered to the Company and to the Executive, determines that, based upon the assertion of a deficiency by the Internal Revenue Service against the Executive, which the Accounting Firm believes has a high probability of success, an Overpayment has been made, then any such Overpayment shall, to the extent permitted under applicable law (including Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to the Executive which the Executive shall promptly repay to the Company together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code; provided, however, the Executive may contest any such determination by the Accounting Firm at his own expense. In the event the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code.

Tax Consideration. (i) In Notwithstanding anything herein to the contrary, in the event that the aggregate of all any payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of hereunder ("Total Payments") are determined by the Company (to be subject to the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in tax imposed by Section 280G(b)(2) 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any similar federal or state excise tax, FICA tax, or any interest or penalties are incurred by the Executive 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 at the time specified in Section 11(d)(vi), an additional amount (the "Gross-Up Amount"), prior to the time any excise tax ("Excise TaxPayment") is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, that after the imposition payment by the Executive of all excise, federal, state and state, or local income taxes, enables Excise Taxes, FICA taxes, or other taxes (including any interest or penalties imposed with respect thereto) imposed upon the Executive to retain a total amount equal to the Aggregate Payment prior to the payment receipt of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the Executive retains an amount of the Gross-Up Amount Payment equal to the Excise Tax imposed on the Total Payments. If the Excise Tax is subsequently determined to be paid less than the amount taken into account hereunder at the time of termination of employment, the Executive shall repay to the ExecutiveCompany, at the time the reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of termination of employment, the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess at the time the amount of such excess is finally determined. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if anysuccessful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the determination date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the Safe Harbor Amountthirty (30) day period following the date on which he or she gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, if applicablethe Executive shall: (a) give the Company any information reasonably requested by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, shall be made including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) cooperate with the Company in good faith by in order to effectively contest such claim; and (d) permit the by the Company's regular outside auditors (the "Accounting Firm")Company to participate in any proceedings relating to such claim; provided, however, that such Accounting Firm presents its rationale the Company shall bear and supporting calculations to the Executive upon his request pay directly all costs and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen by the Executive who present reasonable critiques of the determination. If a dispute over the methodology or conclusions of the Accounting Firm cannot be resolved between the parties, an impartial expenses (including legal and accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the retention Executive harmless, on an after-tax basis, for any Excise Tax, FICA tax, or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the Accounting Firm pursuant to foregoing provisions of this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained15, the additional accounting firm, incurred 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 resolution taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any disputes pursuant permissible manner, an▇ ▇he Executive agrees to this Section 5(fprosecute 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 for a refund, the Company shall advance the amount of such paym▇▇▇ to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code at the time of the determination by the Accounting Firm, the parties hereto acknowledge and agree that it is possible that the Company will have paid limited to issues with respect to which a Gross-Up Amount that exceeds Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, other issues raised by the Internal Revenue Service or any other taxing authority. If any such claim referred to in this Section 15 is made by the Internal Revenue Service and the Company does not request the Executive to contest the claim within the thirty (30) day period following notice of the claim, the Company shall pay to the Executive the amount that on any Gross-Up Payment owed to the Company should have Executive, but not previously paid pursuant to this Section 5(f) (the "Overpayment") or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "Underpayment"). In the event the Accounting Firm15, in a written opinion delivered to the Company and to the Executive, determines that, based immediately upon the assertion expiration of a deficiency such thirty (30) day period. If any such claim is made by the Internal Revenue Service against and the Company requests the Executive to contest such claim, but does not advance the amount of such claim to the Executive for purposes of such contest, the Company shall pay to the Executive the amount of any Gross-Up Payment owed to the Executive, but not previously paid under the provisions of this Section 15, within five (5) business days of a Final Determination of the liability of the Executive for such Excise Tax. For purposes of this Agreement, a "Final Determination" shall be deemed to occur with respect to a claim when (i) there is a decision, judgment, decree, or other order by any court of competent jurisdiction, which decision, judgment, decree, or other order has become final, i.e., all allowable appeals pursuant to this Section 15 have been exhausted by either party to the Accounting Firm believes action, (ii) there is a closing agreement made under Section 7121 of the Code, or (iii) the time for instituting a claim for refund has expired, or if a high probability claim was filed, the time for instituting suit with respect thereto has expired. If, after the receipt by the Executive of successan amount advanced by the Company pursuant to this Section 15, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of this Section 15) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If after the receipt by the Executive of an Overpayment has been madeamount advanced by the Company pursuant to this Section 15, a determination is made by the Internal Revenue Service that the Executive is not entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then any such Overpayment shalladvance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent permitted under applicable law (including Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to the Executive which the Executive shall promptly repay to the Company together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code; provided, howeverthereof, the Executive may contest any such determination by the Accounting Firm at his own expense. In the event the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall amount of Gross-Up Payment required to be promptly paid by the Company to or for the benefit of the Executive together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Codepaid.

Tax Consideration. (i) In Notwithstanding anything herein to the contrary, in the event that any payments, benefits, or distributions (or combination thereof) from the aggregate Company, any affiliates, or any trust established by the Company or any affiliate for the benefit of all payments or benefits made or provided its employees, to the Executive Employee or for Employee’s benefit (including, without limitation, payments hereunder or under this Agreement and under all other plans and programs any equity or option award, including the value of any acceleration of such award), (“Total Payments”) are determined by the Company (to be subject to the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in tax imposed by Section 280G(b)(2) 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) or any similar federal or state excise tax, FICA tax, or any interest or penalties are incurred by the Employee 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 Employee an additional amount (the "“Gross-Up Amount"), prior to the time any excise tax ("Excise Tax"Payment”) is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, that after the imposition payment by the Employee of all excise, federal, state and state, or local income taxes, enables Excise Taxes, FICA taxes, or other taxes (including any interest or penalties imposed with respect thereto) imposed upon the Executive to retain a total amount equal to the Aggregate Payment prior to the payment receipt of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the Employee retains an amount of the Gross-Up Amount Payment equal to the Excise Tax imposed on the Total Payments. Any Gross-Up Payment may be withheld by the Company from the Employee and submitted to the applicable governmental taxing authorities on Employee’s behalf. If the Excise Tax is subsequently determined to be paid less than the amount taken into account hereunder at the time of termination of employment, the Employee shall repay to the ExecutiveCompany, if anyat the time the reduction in Excise Tax is finally determined, and the determination portion of the Safe Harbor Amount, if applicable, shall be made in good faith by the by the Company's regular outside auditors (the "Accounting Firm")Gross-Up Payment attributable to such reduction; provided, however, that Employee shall not be obligated to return such Accounting Firm presents its rationale and supporting calculations to the Executive upon his request and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen excess until receipt by the Executive who present reasonable critiques Employee of a refund of such amount from the determinationapplicable governmental taxing authorities. . If a dispute over the methodology or conclusions of Excise Tax is determined to exceed the Accounting Firm cannot be resolved between the parties, an impartial accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm incurred in connection with the retention of the Accounting Firm pursuant to this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained, the additional accounting firm, incurred in connection with the resolution of any disputes pursuant to this Section 5(f) shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code amount taken into account hereunder at the time of the determination by the Accounting Firmtermination of employment, the parties hereto acknowledge and agree that it is possible that the Company will have paid a shall make an additional Gross-Up Amount that exceeds Payment to the Employee (or to the applicable governmental taxing authorities as withholding on the Employee’s behalf) in respect of such excess at the time the amount that of such excess is finally determined. The Employee shall notify the Company should have paid pursuant to this Section 5(f) (the "Overpayment") or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "Underpayment"). In the event the Accounting Firm, in a written opinion delivered to the Company and to the Executive, determines that, based upon the assertion writing of a deficiency any claim by the Internal Revenue Service against that, if successful, would require the Executive, payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Employee is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which the Accounting Firm believes has a high probability of success, an Overpayment has been made, then any such Overpayment shall, claim is requested to be paid. The Employee shall not pay such claim prior to the extent permitted under applicable law (including Section 402 expiration of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to thirty (30) day period following the Executive date on which the Executive shall promptly repay he or she gives such notice to the Company together (or such shorter period ending on the date that any payment of taxes with interest at respect to such claim is due). If the Applicable Federal Rate provided for Company notifies the Employee in Section 7872(f)(2writing prior to the expiration of such period that it desires to contest such claim, the Employee shall: (a) of give the CodeCompany any information reasonably requested by the Company relating to such claim; (b) 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; (c) cooperate with the Company in good faith in order to effectively contest such claim; and (d) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Executive Company shall bear and pay directly all costs and expenses (including legal and accounting fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax, FICA tax, or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Article VI, 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 Employee to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Employee 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 Employee to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Employee, on an interest-free basis, and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Employee shall be entitled to settle or contest, as the case may be, other issues raised by the Internal Revenue Service or any other taxing authority. If any such determination claim referred to in this Article VI is made by the Accounting Firm at his own expenseInternal Revenue Service and the Company does not request the Employee to contest the claim within the thirty (30) day period following notice of the claim, the Company shall pay to the Employee the amount on any Gross-Up Payment owed to the Employee, but not previously paid pursuant to this Article VI, immediately upon the expiration of such thirty (30) day period. In If any such claim is made by the event Internal Revenue Service and the Accounting FirmCompany requests the Employee to contest such claim, based upon controlling precedent but does not advance the amount of such claim to the Employee for purposes of such contest, the Company shall pay to the Employee the amount of any Gross-Up Payment owed to the Employee, but not previously paid under the provisions of this Article VI, within five (5) business days of a Final Determination of the liability of the Employee for such Excise Tax. For purposes of this Agreement, a “Final Determination” shall be deemed to occur with respect to a claim when (i) there is a decision, judgment, decree, or other substantial authorityorder by any court of competent jurisdiction, determines that which decision, judgment, decree, or other order has become final, i.e., all allowable appeals pursuant to this Article VI have been exhausted by either party to the action, (ii) there is a closing agreement made under Section 7121 of the Code, or (iii) the time for instituting a claim for refund has expired, or if a claim was filed, the time for instituting suit with respect thereto has expired. If, after the receipt by the Employee of an Underpayment has occurred, any such Underpayment shall be promptly paid amount advanced by the Company pursuant to or for this Article VI, the benefit Employee becomes entitled to receive any refund with respect to such claim, the Employee shall (subject to the Company’s complying with the requirements of this Article VI) promptly pay to the Executive Company the amount of such refund (together with any interest at paid or credited thereon after taxes applicable thereto). If after the Applicable Federal Rate provided for receipt by the Employee of an amount advanced by the Company pursuant to this Article VI, a determination is made by the Internal Revenue Service that the Employee is not entitled to any refund with respect to such claim and the Company does not notify the Employee in Section 7872(f)(2writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the Codeextent thereof, the amount of Gross-Up Payment required to be paid.

Tax Consideration. (i) In Notwithstanding anything herein to the contrary, in the event that the aggregate of all any payments or benefits made or provided to the Executive under this Agreement and under all other plans and programs of the Company hereunder (the "Aggregate PaymentTotal Payments") is are determined to constitute a Parachute Payment, as such term is defined in be subject to the tax imposed by Section 280G(b)(2) 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any similar federal or state excise tax, FICA tax, or any interest or penalties are incurred by the Executive 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 (or to the Internal Revenue Service) at the time specified in Section 11(d)(vi), an additional amount (the "Gross-Up Amount"), prior to the time any excise tax ("Excise TaxPayment") is imposed by Section 4999 of the Code is payable with respect to such Aggregate Payment, which, that after the imposition payment by the Executive of all excise, federal, state and state, or local income taxes, enables Excise Taxes, FICA taxes, or other taxes (including any interest or penalties imposed with respect thereto) imposed upon the Executive to retain a total amount equal to the Aggregate Payment prior to the payment receipt of the Gross-Up Amount. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to receive the Gross-Up Amount, but the portion of the Aggregate Payment that would be treated as a Parachute Payment does not exceed 125% of the greatest amount that could be paid to the Executive such that the receipt of the Aggregate Payment would not give rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Amount shall be paid to the Executive and the Aggregate Payment shall be reduced to the Safe Harbor Amount. (ii) All determinations required to be made under this Section 5(f), including whether the Aggregate Payment constitutes a Parachute Payment, the Executive retains an amount of the Gross-Up Amount Payment equal to the Excise Tax imposed on the Total Payments. If the Excise Tax is subsequently determined to be paid less than the amount taken into account hereunder at the time of termination of employment, the Executive shall repay to the ExecutiveCompany, at the time the reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction. If the Excise Tax is determined to exceed the amount taken into account hereunder at the time of termination of employment, the Company shall make an additional Gross-Up Payment to the Executive in respect of such excess at the time the amount of such excess is finally determined. The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if anysuccessful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the determination date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the Safe Harbor Amountthirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, if applicablethe Executive shall: (a) give the Company any information reasonably requested by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, shall be made including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (c) cooperate with the Company in good faith by in order to effectively contest such claim; and (d) permit the by the Company's regular outside auditors (the "Accounting Firm")Company to participate in any proceedings relating to such claim; provided, however, that such Accounting Firm presents its rationale the Company shall bear and supporting calculations to the Executive upon his request pay directly all costs and shall in good faith work to resolve any discrepancies raised by accountants or lawyers chosen by the Executive who present reasonable critiques of the determination. If a dispute over the methodology or conclusions of the Accounting Firm cannot be resolved between the parties, an impartial expenses (including legal and accounting firm shall be consulted to resolve the dispute. All fees and expenses of the Accounting Firm additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the retention Executive harmless, on an after-tax basis, for any Excise Tax, FICA tax, or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the Accounting Firm pursuant to foregoing provisions of this Section 5(f) shall be borne by the Company. All fees and expenses of the accountants and lawyers chosen by the Executive and, if retained15, the additional accounting firm, incurred 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 resolution taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any disputes pursuant permissible manner, and ▇▇▇ Executive agrees to this Section 5(fprosecute 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 for a refund, the Company shall advance the amount of such paymen▇ ▇o the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be borne by the non-prevailing party. (iii) As a result of uncertainty in the application of Sections 280G and 4999 of the Code at the time of the determination by the Accounting Firm, the parties hereto acknowledge and agree that it is possible that the Company will have paid limited to issues with respect to which a Gross-Up Amount that exceeds Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, other issues raised by the Internal Revenue Service or any other taxing authority. If any such claim referred to in this Section 15 is made by the Internal Revenue Service and the Company does not request the Executive to contest the claim within the thirty (30) day period following notice of the claim, the Company shall pay to the Executive (or the Internal Revenue Service) the amount that on any Gross-Up Payment owed to the Company should have Executive, but not previously paid pursuant to this Section 5(f) (the "Overpayment") or that the Company will have paid a Gross-Up Amount that is less than the amount that the Company should have paid pursuant to this Section 5(f) (the "Underpayment"). In the event the Accounting Firm15, in a written opinion delivered to the Company and to the Executive, determines that, based immediately upon the assertion expiration of a deficiency such thirty (30) day period. If any such claim is made by the Internal Revenue Service against and the Company requests the Executive to contest such claim, but does not advance the amount of such claim to the Executive for purposes of such contest, the Company shall pay to the Executive the amount of any Gross-Up Payment owed to the Executive, but not previously paid under the provisions of this Section 15, within five (5) business days of a Final Determination of the liability of the Executive for such Excise Tax. For purposes of this Agreement, a "Final Determination" shall be deemed to occur with respect to a claim when (i) there is a decision, judgment, decree, or other order by any court of competent jurisdiction, which decision, judgment, decree, or other order has become final, i.e., all allowable appeals pursuant to this Section 15 have been exhausted by either party to the Accounting Firm believes action, (ii) there is a closing agreement made under Section 7121 of the Code, or (iii) the time for instituting a claim for refund has expired, or if a high probability claim was filed, the time for instituting suit with respect thereto has expired. If, after the receipt by the Executive of successan amount advanced by the Company pursuant to this Section 15, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of this Section 15) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If after the receipt by the Executive of an Overpayment has been madeamount advanced by the Company pursuant to this Section 15, a determination is made by the Internal Revenue Service that the Executive is not entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then any such Overpayment shalladvance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent permitted under applicable law (including Section 402 of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002), be treated for all purposes as a loan to the Executive which the Executive shall promptly repay to the Company together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Code; provided, howeverthereof, the Executive may contest any such determination by the Accounting Firm at his own expense. In the event the Accounting Firm, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, any such Underpayment shall amount of Gross-Up Payment required to be promptly paid by the Company to or for the benefit of the Executive together with interest at the Applicable Federal Rate provided for in Section 7872(f)(2) of the Codepaid.