Common use of Tax Gross-Up for Parachute Payments Clause in Contracts

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("Potential Parachute Payment") would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, or any similar tax payable under any United States federal, state, local, foreign or other law ("Excise Tax"), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes as defined below. The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("Taxes") payable by Executive with respect to the Tax Gross-Up Payment and shall be in an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursed. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's independent public accountants (the "Accounting Firm"), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes as defined below. The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment and shall be in an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursed. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (C) Any Tax Gross-Up Payment, as determined pursuant to this Section 5(f), shall be paid by the Company to Executive as and when the Excise Tax is incurred on a Potential Parachute Payment, or at such later date as mutually agreed by the parties hereto, but in no event later than the end of Executive’s taxable year next following the taxable year in which Executive remits the applicable Excise Tax to the IRS and any applicable state taxing authorities. The Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable, including, to the extent applicable, subject to and in compliance with Section 5(d)(ii).” 6. Section 5(h) of the Original Agreement is hereby amended and restated in its entirety as follows:

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and thus would be subject to the excise tax imposed by Section 4999 of the Code, or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes as defined below. The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment and shall be in an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursed. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $50,000. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. The Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, (i) any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(d); and (ii) any Tax Gross-Up Payment attributable to payments other than the Severance Benefit or Continuing Benefits shall be paid in a lump sum payment upon the closing of the Change of Control (as hereinafter defined). (C) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $50,000. Notwithstanding the preceding sentences, if the Executive would receive greater net after tax benefits if the payments to Executive were reduced to be one dollar ($1.00) less than the maximum amount Executive could receive without becoming subject to the Excise Tax, then the payments to Executive shall be so reduced. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. Notwithstanding the preceding sentence, the Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(e). (C) The determinations to be made under this Section 5(f5(g) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f5(g) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and thus would be subject to the excise tax imposed by Section 4999 of the Code, or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes as defined below. The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment and shall be in an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursed. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm. (C) Any Tax Gross-Up Payment, as determined pursuant to this Section 5(f), shall be paid by the Company to Executive as and when the Excise Tax is incurred on a Potential Parachute Payment, or at such later date as mutually agreed by the parties hereto, but in no event later than the end of Executive’s taxable year next following the taxable year in which Executive remits the applicable Excise Tax to the IRS and any applicable state taxing authorities. The Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable, including, to the extent applicable, subject to and in compliance with Section 5(d)(ii).” 6. Section 5(h) of the Original Agreement is hereby amended and restated in its entirety as follows:

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $50,000. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. The Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, (i) any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(d); and (ii) any Tax Gross-Up Payment attributable to payments other than the Severance Benefit or Continuing Benefits shall be paid in a lump sum payment upon the closing of the Change of Control (as hereinafter defined). (C) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("Potential Parachute Payment") would constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("Excise Tax"), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("Taxes") payable by Executive with respect to the Tax Gross-Up Payment and shall be in an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursed. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's independent public accountants (the "Accounting Firm"), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $100,000. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $100,000. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. The Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, (i) any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(d); and (ii) any Tax Gross-Up Payment attributable to payments other than the Severance Benefit or Continuing Benefits shall be paid in a lump sum payment upon the closing of the Change of Control (as hereinafter defined). (C) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $100,000. Notwithstanding the preceding sentences, if the Executive would receive greater net after tax benefits if the payments to Executive were reduced to be one dollar ($1.00) less than the maximum amount Executive could receive without becoming subject to the Excise Tax, then the payments to Executive shall be so reduced. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. Notwithstanding the preceding sentence, the Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(e). (C) The determinations to be made under this Section 5(f5(g) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f5(g) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $50,000. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) The determinations to be made under this Section 5(f) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.

Tax Gross-Up for Parachute Payments. (A) If at any time or from time to time it shall be determined that any payment to Executive pursuant to this Agreement or any other payment or benefit hereunder or under any other plan or agreement or otherwise ("“Potential Parachute Payment"”) would constitute an "“excess parachute payment" ” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and thus would be subject to the excise tax imposed by Section 4999 of the Code, Code or any similar tax payable under any United States federal, state, local, foreign or other law ("“Excise Tax"”), then Executive shall receive and the Company shall pay or cause to be paid a Tax Gross-Up Payment with respect to all Taxes (as defined below). The Tax Gross-Up Payment is intended to compensate Executive for all such excise taxes and federal, state, local, foreign or other income, employment or excise taxes or other taxes ("“Taxes"”) payable by Executive with respect to the Tax Gross-Up Payment (subject to the maximum amount set forth in clause (ii) below) and shall be in the lesser of: (i) an amount such that after payment of Taxes on such amount there remains a balance sufficient to pay the taxes being reimbursedreimbursed or (ii) $50,000. Notwithstanding the preceding sentences, if the Executive would receive greater net after tax benefits if the payments to Executive were reduced to be one dollar ($1.00) less than the maximum amount Executive could receive without becoming subject to the Excise Tax, then the payments to Executive shall be so reduced. For purposes of determining the amount of the Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Tax Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Potential Parachute Payment), net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. (B) Any Tax Gross-Up Payment shall be paid by the Company to Executive as and when the Excise Tax is incurred on any Potential Parachute Payment. Notwithstanding the preceding sentence, the Tax Gross-Up Payment shall be paid in accordance with Code Section 409A, to the extent applicable. If required in order to comply with Code Section 409A, any Tax Gross-Up Payment attributable to the Severance Benefit or Continuing Benefits described in Section 5 of this Agreement shall be paid in a lump sum payment on the first day on which severance compensation is paid pursuant to Section 5(e). (C) The determinations to be made under this Section 5(f5(g) shall be made by the Company's ’s independent public accountants (the "“Accounting Firm"”), which firm shall provide its determinations and any supporting calculations both to the Company and to Executive. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 5(f5(g) shall be borne solely by the Company, and the Company shall indemnify and hold harmless the Accounting Firm of and from any and all claims, damages and expenses resulting therefrom, except for claims, damages or expenses resulting from the gross negligence or willful misconduct of the Accounting Firm.