Common use of Excise Tax Payment Clause in Contracts

Excise Tax Payment. (a) If, as a result of Executive's employment with the Company or termination thereof, the benefits received by Executive (the "Total Payments") are subject to the excise tax provision set forth in section 4999 of the Code (the "Excise Tax"), the Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "reasonable compensation" for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (ai) IfWhether or not the Executive becomes entitled to payments and benefits pursuant to Section 5(c) (the "Severance Payments"), as a result of Executive's employment with the Company if it is determined that any payment or termination thereof, the benefits benefit received or to be received by the Executive is a "parachute payment" within the meaning of Section 280G of the Code (all such payments and benefits, including the Severance Payments as applicable, being hereinafter called "Total Payments") are that will be subject (in whole or part) to the excise tax provision set forth in section imposed under Section 4999 of the Code (the "Excise Tax"), then, subject to the provisions of Section 5(f)(ii) hereof, the Company shall pay to the Executive on or as soon as practicable following the day on which the Excise Tax is remitted (but not later than the end of the taxable year following the year in which the Excise Tax is incurred) an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the benefits received hereunder Total Payments and any Federalfederal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (bii) In the event that the amount of the Total Payments does not exceed 110% of the largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (the "Safe Harbor"), then Section 5(f)(i) hereof shall not apply and the noncash Severance Payments shall first be reduced (if necessary, to zero), and the cash Severance Payments shall thereafter be reduced (if necessary, to zero) so that the amount of the Total Payments is equal to the Safe Harbor; provided, however, that, to the extent permitted by Section 409A of the Code, the Executive may elect to have the cash Severance Payments reduced (or eliminated) prior to any reduction of the noncash Severance Payments. (iii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section Section 280G(b)(2) of the Code) unless, unless in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Controlevent triggering the application of Section 280G of the Code, the Company's independent auditor (the "Auditor"), such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section Section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "reasonable compensation" compensation for services actually rendered rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the base amount (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) Section 280G of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining The Company shall provide the amount Executive with its calculation of the Gross-Up Payment, amounts referred to in this Section 5(f)(iii) and such supporting materials as are reasonably necessary for the Executive shall be deemed to pay federal income tax at evaluate the highest marginal rate of federal income taxation Company's calculations. If the Executive disputes the Company's calculations (in the calendar year whole or in which the 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 on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b)part), net the reasonable opinion of Tax Counsel with respect to the maximum reduction matter in federal income taxes which could be obtained from deduction of such state and local taxesdispute shall prevail. (cI) In the event that (1) amounts are paid to the Executive pursuant to Section 5(f)(i), (2) there is a final determination by the Internal Revenue Service or, if such determination is appealed, a final determination by any court of competent jurisdiction (a "Final Determination"), that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, and (3) after giving effect to such Final Determination, the Severance Payments are to be reduced pursuant to Section 5(f)(ii), the Executive shall repay to the Company, within five (5) business days following the time that date of the Final Determination, the Gross-Up Payment, the amount of the reduction in the Severance Payments, plus interest on the amount of such reduction repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (II) In the event that (1) amounts are paid to the Executive pursuant to Section 5(f)(i)), (2) there is a Final Determination that the Excise Tax is finally determinedless than the amount taken into account hereunder in calculating the Gross-Up Payment, and (3) after giving effect to such Final Determination, the Severance Payments are not to be reduced pursuant to Section 5(f)(ii), the Executive shall repay to the Company, within five (5) business days following the date of the Final Determination, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section Section 1274(b)(2)(B) of the Code. In . (III) Except as otherwise provided in paragraph (IV) below, in the event there is a Final Determination that the Excise Tax is determined to exceed exceeds the amount taken into account hereunder in calculating determining the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional pay to the Executive, within five (5) business days following the date of the Final Determination, the sum of (1) a Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment, including a Gross-Up Payment in respect of any Excise Tax attributable to amounts payable under clauses (2) and (3) of this paragraph (III) (plus any interest, penalties or additions payable by the Executive with respect to such excessexcess and such portion), (2) if Severance Payments were reduced pursuant to Section 5(f)(ii) but after giving effect to such Final Determination, the Severance Payments should not have been reduced pursuant to Section 5(f)(ii), the amount by which the Severance Payments were reduced pursuant to Section 5(f)(ii), and (3) interest on such amounts at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (IV) In the event that (1) Severance Payments were reduced pursuant to Section 5(f)(ii) and (2) the aggregate value of Total Payments which are considered "parachute payments" within the meaning of Section 280G(b)(2) of the Code is subsequently redetermined in a Final Determination, but such redetermined value still does not exceed 110% of the Safe Harbor, then, within five (5) business days following such Final Determination, (x) the time Company shall pay to the Executive the amount (if any) by which the reduced Severance Payments (after taking the Final Determination into account) exceeds the amount of the reduced Severance Payments actually paid to the Executive, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code, or (y) the Executive shall pay to the Company the amount (if any) by which the reduced Severance Payments actually paid to the Executive exceeds the amount of the reduced Severance Payments (after taking the Final Determination into account), plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (v) If the amounts of the payments described in the preceding provisions of this subsection (f) cannot be finally determined on or before the date payment is to be made, the Company shall pay to the Executive on such day an estimate, as determined in accordance with this subsection (f), of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the 30th day after the date payment is to be made. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess is finally determined. Executive and shall constitute a loan by the Company to the Executive, payable on the fifth business day after demand by the Company (together with interest at 120% of the rate provided in Section 1274(b)(2)(B) of the Code). (vi) The Company also shall each reasonably cooperate with pay to the other Executive all legal fees and expenses incurred by the Executive in connection with any administrative tax audit or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect proceeding to the Total Payments. extent attributable to the application of Section 4999 of the Code to any payment or benefit provided hereunder. Such payments shall be made within five business days after delivery of the Executive's written requests for payment accompanied with such evidence of fees and expenses incurred as the Company reasonably may require (d) Notwithstanding anything else hereinbut in no event shall any such payment be made after the end of the calendar year following the calendar year in which the expenses were incurred), this Paragraph 10 provided that no such payment shall survive be made in respect of fees or expenses incurred by the Executive after the later of the tenth anniversary of the Date of Termination or the Executive's death, and provided further, that, upon the Executive’s separation from service with the Company, in no event shall any termination of employment, any additional such payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs be made prior to a Change in Control, or any payments or termination the date that is six months after the date of obligations in connection with the Executive’s separation from service to the extent such termination for Causepayment delay is required under Section 409A(a)(2)(B)(i) of the Code.

Excise Tax Payment. (a) If, as a result during the term of Executive's employment with the Company or termination thereofthis Agreement, the benefits received by Executive hereunder (the "Total Payments") are subject to the excise tax provision set forth in section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (the "Excise Tax"), the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "reasonable compensation" compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined deter- mined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b9(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five fifteen (515) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) within five fifteen (515) business days following the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (ai) IfIn the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the “Contract Payments”) or of any other plan, as a result arrangement or agreement of Executive's employment the Company (or any affiliate) (together with the Company or termination thereofContract Payments, the benefits received by Executive (the "“Total Payments"”) are would be subject to the excise tax provision set forth in (the “Excise Tax”) imposed by section 4999 of the Code (as determined as provided below, then, subject to the "Excise Tax"provisions of Section 5(d)(ii), the Company shall pay to Executive the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of any the Excise Tax on the benefits received hereunder Total Payments and any Federalfederal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments. (b) Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (iA) all the total amount of the Total Payments shall be treated as "“parachute payments" (” within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "“excess parachute payments" ” within the meaning of section 280G(b)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of Tax Counselthe Auditor, such excess parachute payments amount (in whole or in part) represent "reasonable compensation" for services actually rendered (does not constitute a “parachute payment” within the meaning of section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or such “excess parachute payments” (in whole or in part) are otherwise not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (iiiC) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's ’s residence on in the date of termination (or if there is no date of termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken , taking into account hereunder in calculating the Gross-Up Payment, Executive shall repay any limitations applicable to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable individuals subject to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local federal income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined tax at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Paymentshighest marginal rate. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (a) If, as a result of Executive's ’s employment with the Company or termination thereof, the benefits received by Executive (the "“Total Payments"”) are subject to the excise tax provision set forth in section 4999 of the Code (the "“Excise Tax"”), the Company shall pay to Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "“parachute payments" ” (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("“Tax Counsel"”) reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's ’s independent auditor (the "“Auditor"”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "“excess parachute payments" ” within the meaning of section 280G(b)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "“reasonable compensation" ” for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section section, 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's ’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (ai) IfIn the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "Contract Payments") or of any other plan, as a result arrangement or agreement of Executive's employment the Company (or any affiliate) (together with the Company or termination thereofContract Payments, the benefits received by Executive (the "Total Payments") are would be subject to the excise tax provision set forth in section 4999 of the Code (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section5(d)(ii), the Company shall pay to Executive the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any the Excise Tax on the benefits received hereunder Total Payments and any Federalfederal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments. (b) Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (iA) all the total amount of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of Tax Counselthe independent auditor of BKB immediately prior to the Effective Date (the "Auditor"), such excess parachute payments amount (in whole or in part) represent does not constitute a "reasonable compensationparachute payment" for services actually rendered (within the meaning of section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (iiiC) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's residence on in the date of termination (or if there is no date of termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate. (cii) In the event that, after giving effect to any redeterminations described in Section 5(d)(iv), the sum of the Total Payments and the Gross-Up Payment (in each case after deduction of the net amount of federal, state and local income and employment taxes and the amount of Excise Tax to which the Executive would be subject in respect of such Total Payments and the Gross-Up Payment) does not equal or exceed 110% of the largest amount of Total Payments that would result in no portion of the Total Payments being subject to the Excise Tax (after deduction of the net amount of federal, state and local income and employment taxes on such reduced Total Payments), then Section 5(d)(i) shall not apply and, to the extent necessary to ensure that no portion of the Total Payments is subject to the Excise Tax, the cash Contract Payments shall first be reduced (if necessary, to zero), and the noncash Contract Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Contract Payments reduced (or eliminated) prior to any reduction of the cash Contract Payments. (iii) The Gross-Up Payments provided for in Section 5(d)(i) shall be made upon the earlier of (i) ten days following termination of the Executive's employment or (ii) ten days following the imposition upon the Executive or payment by the Executive of any Excise Tax. (iv) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of the Auditor that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating under Section 5(d)(i) , the Gross-Up Payment, Executive shall repay to the Company, Company within five thirty (530) business days following of the time that the amount Executive's receipt of notice of such reduction in the Excise Tax is finally determined, final determination or opinion the portion of the Gross-Up Payment attributable to such reduction (plus that the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that Executive if such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.in

Excise Tax Payment. (a) If, as a result of Executive's ’s employment with the Company or termination thereof, the benefits received by Executive (the "“Total Payments"”) are subject to the excise tax provision set forth in section 4999 of the Code (the "“Excise Tax"”), the Company shall pay to Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "“parachute payments" ” (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("“Tax Counsel"”) reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's ’s independent auditor (the "“Auditor"”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "“excess parachute payments" ” within the meaning of section 280G(b)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "“reasonable compensation" ” for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section section, 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b9(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's ’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 9 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 9 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (a) If, as a result of Executive's ’s employment with the Company or termination thereof, the benefits received by Executive under Section 9 above (the "“Total Payments"”) are subject to the excise tax provision set forth in section Section 4999 of the Code (the "“Excise Tax"”), the Company shall pay to Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. Subject to Paragraph 11(b) below, the Company shall pay to Executive as soon as administratively practicable, but in no event later than by end of the calendar year following the year in which Executive remits the Excise Tax, and Gross-Up Payment due under this subparagraph (a). (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "“parachute payments" ” (within the meaning of section Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("“Tax Counsel"”) reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's ’s independent auditor (the "“Auditor"”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section Section 280G(b)(4)(A) of the Code, (ii) all "“excess parachute payments" ” within the meaning of section 280G(b)(lSection 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "“reasonable compensation" ” for services actually rendered (within the meaning of section Section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section Section, 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(bsubparagraph (b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's ’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at one hundred twenty percent (120% %) of the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined, but in no event later than the end of the calendar year following the year in which Executive remits the Excise Tax, subject to Paragraph 11(b) below. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, Control or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (ai) IfIn the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this agreement (the "Contract Payments") or of any other plan, as a result arrangement or agreement of Executive's employment the Company (or any affiliate) (together with the Company or termination thereofContract Payments, the benefits received by Executive (the "Total Payments") are would be subject to the excise tax provision set forth in section 4999 of the Code (the "Excise Tax") imposed by section 4999 of the Code as determined as provided below, then, subject to the provisions of Section 5(d)(ii), the Company shall pay to Executive the Executive, at the time specified in Section 5(d)(iii) below, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any the Excise Tax on the benefits received hereunder Total Payments and any Federalfederal, state and local income and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in section 1274(d) of the Code in such calculation) of the Total Payments. (b) Payments at the time such Total Payments are to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (iA) all the total amount of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of Tax Counselthe Auditor, such excess parachute payments amount (in whole or in part) represent does not constitute a "reasonable compensationparachute payment" for services actually rendered (within the meaning of section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the Base Amount (as defined in section 280G(b)(3) of the Code) allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise not subject to the Excise Tax, (B) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Total Payments or (2) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (A) hereof), and (iiiC) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of the Executive's residence on in the date of termination (or if there is no date of termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Paragraph 10(b))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rate. (cii) In the event that, after giving effect to any redeterminations described in Section 5(d)(iv), the sum of the Total Payments and the Gross-Up Payment (in each case after deduction of the net amount of federal, state and local income and employment taxes and the amount of Excise Tax to which the Executive would be subject in respect of such Total Payments and the Gross-Up Payment) does not equal or exceed 110% of the largest amount of Total Payments that would result in no portion of the Total Payments being subject to the Excise Tax (after deduction of the net amount of federal, state and local income and employment taxes on such reduced Total Payments), then Section 5(d)(i) shall not apply and, to the extent necessary to ensure that no portion of the Total Payments is subject to the Excise Tax, the cash Contract Payments shall first be reduced (if necessary, to zero), and the noncash Contract Payments shall thereafter be reduced (if necessary, to zero); provided, however, that the Executive may elect to have the noncash Contract Payments reduced (or eliminated) prior to any reduction of the cash Contract Payments. (iii) The Gross-Up Payments provided for in Section 5(d)(i) shall be made upon the earlier of (i) ten days following termination of the Executive's employment or (ii) ten days following the imposition upon the Executive or payment by the Executive of any Excise Tax. (iv) If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of the Auditor that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating under Section 5(d)(i) , the Gross-Up Payment, Executive shall repay to the Company, Company within five thirty (530) business days following of the time that the amount Executive's receipt of notice of such reduction in the Excise Tax is finally determined, final determination or opinion the portion of the Gross-Up Payment attributable to such reduction (plus that the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that Executive if such repayment results in a reduction in the Excise Tax and or a dollar-for-dollar reduction in Executive's taxable income and wages for purposes of federal, state and or local income and or employment taxes, tax deduction) plus any interest received by the Executive on the amount of such repayment at 120% repayment. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of the rate provided in section 1274(b)(2)(B) of the Code. In the event Auditor that the Excise Tax is determined to exceed exceeds the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment Payment, plus any interest and penalties, in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excesswithin thirty (30) within five (5) business days following of the time that the amount Company's receipt of notice of such excess is finally determined. Executive final determination or opinion. (v) All fees and expenses of the Company shall each reasonably cooperate with the other Auditor incurred in connection with any administrative or judicial proceedings concerning this agreement shall be borne by the existence or amount of liability for Excise Tax with respect to the Total PaymentsCompany. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, or any payments or termination of obligations in connection with such termination for Cause.

Excise Tax Payment. (a) If, as a result of Executive's ’s employment with the Company or termination thereof, the benefits received by Executive under Paragraph 9 above (the "“Total Payments"”) are subject to the excise tax provision set forth in section Section 4999 of the Code (the "“Excise Tax"”), the Company shall pay to Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the benefits received hereunder and any Federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments.. Subject to Paragraph 11(b) below, the Company shall pay to Executive as soon as administratively practicable, but in no event later than by end of the calendar year following the year in which Executive remits the Excise Tax, any Gross-Up Payment due under this subparagraph (a) (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "“parachute payments" ” (within the meaning of section Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("“Tax Counsel"”) reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's ’s independent auditor (the "“Auditor"”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section Section 280G(b)(4)(A) of the Code, (ii) all "“excess parachute payments" ” within the meaning of section 280G(b)(lSection 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent "“reasonable compensation" ” for services actually rendered (within the meaning of section Section 280G(b)(4)(B) of the Code) in excess of the Base Amount (as defined in section Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's ’s residence on the date of termination (or if there is no date of termination, then the date on which the Gross-Up Payment is calculated for purposes of this Paragraph 10(bsubparagraph (b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in Executive's ’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at one hundred twenty percent (120% %) of the rate provided in section Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess plus any interest, penalties or additions payable by Executive with respect to such excess) within five (5) business days following the time that the amount of such excess is finally determined, but in no event later than the end of the calendar year following the year in which Executive remits the Excise Tax, subject to Paragraph 11(b) below. Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Notwithstanding anything else herein, this Paragraph 10 shall survive any termination of employment, any payments hereunder or any termination of obligations hereunder; provided, however, that this Paragraph 10 shall not survive any termination of employment for Cause that occurs prior to a Change in Control, Control or any payments or termination of obligations in connection with such termination for Cause.