Common use of Additional Payments Clause in Contracts

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. IfIf it is determined that any amount, for right or benefit paid or payable (or otherwise provided or to be provided) to Executive by the Company or any taxable yearof its affiliates under this Agreement or any other plan, program or arrangement under which Executive shall be liable for participates or is a party (collectively, the payment "PAYMENTS"), would constitute an "excess parachute payment" within the meaning of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) 280G of the Internal Revenue Code of 1986, as amended from time to time (the “"CODE"), subject to the excise tax imposed by Section 4999 of the Code”, as amended from time to time (the "EXCISE TAX"), then Executive shall be entitled to receive an additional payment from the Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including the corresponding provisions of any succeeding law, income and employment taxes (and any interest and penalties imposed with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”thereto) such that the net amount retained by the Executive, after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall (and any interest and penalties imposed with respect thereto), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. All determinations required to be made to Executive or as provided in Section 16 hereofunder this SECTION 6, upon including whether and when a Gross-Up Payment is required, the later amount of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and Executive (the "AUDITOR"). The Auditor shall provide detailed supporting calculations to both the Company and Executive within fifteen (15) business days of the receipt of notice from Executive or the Company that there has been a Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly earlier time as is requested by the Company Company. All fees and expenses of the Executive. The cost of such services by the accounting firm Auditor shall be paid by the Company. If Any Gross-Up Payment, as determined pursuant to this SECTION 6, shall be paid by the Company to Executive within five (5) days of the receipt of the Auditor's determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Executive are unable Auditor's initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to designate jointly the accounting firmPayments, then the firm Auditor shall be recalculate the accounting firm used amount of the Gross-Up Payment based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the "RECALCULATED AMOUNT") and the Company immediately prior shall pay to Executive the Change in Controlexcess of the Recalculated Amount over the Gross-Up Payment initially paid to Executive within five (5) days of the receipt of the Auditor's recalculation of the Gross-Up Payment.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.. 13

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments under this Section 4.9 or any payments and/or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 124.9, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive by domestic cashier's or as provided in Section 16 hereoftreasurer's check, certified check or wire transfer, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If, for any taxable year, Executive -------------------- shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, good funds upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments under this Section 10 or any payments and/or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 1210, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive by domestic cashier's or as provided in Section 16 hereoftreasurer's check, certified check or wire transfer, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If(i) Notwithstanding anything in this Agreement to the contrary, for in the event it is determined (as hereafter provided) that any taxable yearright or interest that vests in the Executive, Executive shall be liable or any payment or distribution made by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, Plan, program or arrangement, including without limitation any share option, share appreciation right, dividend equivalent right, restricted shares of similar right, the lapse or termination of any restriction on or the vesting or exerciseability of any of the foregoing (any such right, interest, payment of an or distribution, a "Payment"), would be subject to the excise tax under imposed by Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), including by reason of being considered an "excess parachute payment," within the corresponding provisions meaning of Section 280G of the Code (or any succeeding successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Executive will be entitled to receive an additional payment or payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of from the Company applicable to Executive individually or generally to executives or employees of the Company(collectively, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional amount (the “a "Gross-Up Payment”) "). The Gross-Up Payment will be in an amount such that the net amount retained that, after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and including any Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The Executive will have received an amount of any the Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior equal to the Change in ControlExcise Tax imposed upon the Payment.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. IfDuring the Benefits Period, for any taxable year, Executive shall be liable for and subject to Section 12(B) below (relating to the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company six month delay applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this AgreementSpecified Employees), the Company shall pay to the Executive an additional amount (equal to the “Gross-Up Payment”monthly premium cost set forth in Section 6.1(I) above, minus an amount equal to the monthly employee contribution rate that is paid by Company employees for the applicable level of such that coverage immediately prior to the net amount retained by Date of Termination or, if more favorable to the Executive, after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control, which payment shall be paid in advance on the first payroll day of each month, commencing with the first such payroll day that coincides with or next follows the Date of Termination. Each month, when the Company pays the amount required by the preceding sentence, the Company shall also pay the Executive a tax gross-up on the amount paid pursuant to the preceding sentence, i.e., an amount sufficient after taxes on the tax gross-up paid pursuant to this sentence to reimburse the Executive for any Federal, state, local or foreign taxes imposed upon the Executive as a result of the Company’s payment of the amount required by the preceding sentence. For purposes of determining the amount of the tax gross-up to be paid pursuant to this Section 6.1(J) or pursuant to any other provision of this Agreement or any other plan or arrangement pursuant to which the Executive is entitled to receive a tax gross-up after a Change in Control and during the Term, the Executive shall notify the Company from time to time of the highest effective marginal rates at which the Executive’s income is taxed under any applicable Federal, state, local and foreign laws and such rates shall be conclusive on the Company for purposes of determining the amount of the tax gross-up to be paid, and in no event shall the Executive be required to disclose his tax returns to the Company or otherwise for the purpose of determining the amount of the tax gross-up to be paid.

Additional Payments. If(i) Notwithstanding anything in this Agreement to the contrary, for in the event it is determined (as hereafter provided) that any taxable yearright or interest that vests in the Executive, Executive shall be liable or any payment or distribution made by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, Plan, program or arrangement, including without limitation any share option, share appreciation right, dividend equivalent right, restricted shares of similar right, the lapse or termination of any restriction on or the vesting or exerciseability of any of the foregoing (any such right, interest, payment of an or distribution, a “Payment”), would be subject to the excise tax under imposed by Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto), including by reason of being considered an “excess parachute payment,” within the corresponding provisions meaning of Section 280G of the Code (or any succeeding successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”), then the Executive will be entitled to receive an additional payment or payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of from the Company applicable to Executive individually or generally to executives or employees of the Company(collectively, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional amount (the a “Gross-Up Payment”) ). The Gross-Up Payment will be in an amount such that the net amount retained that, after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and including any Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The Executive will have received an amount of any the Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior equal to the Change in ControlExcise Tax imposed upon the Payment.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, good funds upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. IfIf it is determined that any amount, for right or benefit paid or payable (or otherwise provided or to be provided) to Executive by the Company or any taxable yearof its affiliates under this Agreement or any other plan, program or arrangement under which Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A participates or other substitute or similar tax assessment is a party (collectively, the “Excise TaxPayments”) ), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), including subject to the corresponding provisions of any succeeding law, with respect to any payments or benefits under excise tax imposed by Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan 4999 of the Company applicable Code, as amended from time to time (the “Excise Tax”), then Executive individually or generally shall be entitled to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, receive an additional payment from the Company shall pay to the Executive an additional amount (the a “Gross-Up Payment”) in an amount such that the net amount retained by the Executivethat, after deduction payment by Executive of the Excise Tax all taxes (including any interest or penalties imposed on all with respect to such payments taxes), including any income and benefits employment taxes (and of the federal, state any interest and local income tax penalties imposed with respect thereto) and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall (and any interest and penalties imposed with respect thereto), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest and penalties imposed with respect thereto) imposed upon the Payments. All determinations required to be made to Executive or as provided in under this Section 16 hereof6, upon including whether and when a Gross-Up Payment is required, the later amount of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and Executive (the “Auditor”). The Auditor shall provide detailed supporting calculations to both the Company and Executive within fifteen (15) business days of the receipt of notice from Executive or the Company that there has been a Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly earlier time as is requested by the Company Company. All fees and expenses of the Executive. The cost of such services by the accounting firm Auditor shall be paid by the Company. If Any Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by the Company to Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Executive are unable Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to designate jointly the accounting firmPayments, then the firm Auditor shall be recalculate the accounting firm used amount of the Gross-Up Payment based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company immediately prior shall pay to Executive the Change in Controlexcess of the Recalculated Amount over the Gross-Up Payment initially paid to Executive within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Additional Payments. If(i) Notwithstanding anything in this Agreement to the contrary, for in the event it is determined (as hereafter provided) that any taxable year, Executive shall be liable payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, Plan, program or arrangement, including without limitation any share option, share appreciation right, dividend equivalent right, restricted shares of similar right, the lapse or termination of any restriction on or the vesting or exerciseability of any of the foregoing (any such payment of an or distribution, a "Payment"), would be subject to the excise tax under imposed by Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), including by reason of being considered an "excess parachute payment," within the corresponding provisions meaning of Section 280G of the Code (or any succeeding successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Executive will be entitled to receive an additional payment or payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of from the Company applicable to Executive individually or generally to executives or employees of the Company(collectively, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional amount (the “a "Gross-Up Payment”"); provided, however, that no Gross-up Payment will be made with respect to the Excise Tax, if any, attributable to (A) any incentive stock option ("ISO") granted prior to the execution of the 1998 Agreement or (B) any share appreciation or similar right, whether or not limited, granted in tandem with any ISO described in clause (A) of this sentence. The Gross-Up Payment will be in an amount such that the net amount retained that, after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and including any Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The Executive will have received an amount of any the Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior equal to the Change in ControlExcise Tax imposed upon the Payment.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or 101 benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, good funds upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments under this Section 10 or any payments and/or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 1210, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive by domestic cashier’s or as provided in Section 16 hereoftreasurer’s check, certified check or wire transfer, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If(i) Notwithstanding anything in this Agreement to the contrary, for in the event it is determined (as hereafter provided) that any taxable yearright or interest that vests in the Executive, Executive shall be liable or any payment or distribution made by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, Plan, program or arrangement, including without limitation any share option, share appreciation right, dividend equivalent right, restricted shares of similar right, the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (any such right, interest, payment of an or distribution, a "Payment"), would be subject to the excise tax under imposed by Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), including by reason of being considered an "excess parachute payment," within the corresponding provisions meaning of Section 280G of the Code (or any succeeding successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the "Excise Tax"), then the Executive will be entitled to receive an additional payment or payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of from the Company applicable to Executive individually or generally to executives or employees of the Company(collectively, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive an additional amount (the “a "Gross-Up Payment”) "). The Gross-Up Payment will be in an amount such that the net amount retained that, after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and including any Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The Executive will have received an amount of any the Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior equal to the Change in ControlExcise Tax imposed upon the Payment.

Additional Payments. If, for any taxable year, Executive shall be ------------------- liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this this/her Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, good funds upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. IfDuring the Benefits Period, for any taxable year, Executive shall be liable for and subject to Section 12(B) below (relating to the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “Excise Tax”) of the Internal Revenue Code of 1986, as amended (the “Code”), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company six month delay applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this AgreementSpecified Employees), the Company shall pay to the Executive an additional amount (equal to the “Gross-Up Payment”monthly premium cost set forth in Section 6.1(F) above, minus an amount equal to the monthly employee contribution rate that is paid by Company employees for the applicable level of such that coverage immediately prior to the net amount retained by Date of Termination or, if more favorable to the Executive, after deduction of the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control, which payment shall be paid in advance on the first payroll day of each month, commencing with the first such payroll day that coincides with or next follows the Date of Termination. Each month, when the Company pays the amount required by the preceding sentence, the Company shall also pay the Executive a tax gross-up on the amount paid pursuant to the preceding sentence, i.e., an amount sufficient after taxes on the tax gross-up paid pursuant to this sentence to reimburse the Executive for any Federal, state, local or foreign taxes imposed upon the Executive as a result of the Company's payment of the amount required by the preceding sentence. For purposes of determining the amount of the tax gross-up to be paid pursuant to this Section 6.1(G) or pursuant to any other provision of this Agreement or any other plan or arrangement pursuant to which the Executive is entitled to receive a tax gross-up after a Change in Control and during the Term, the Executive shall notify the Company from time to time of the highest effective marginal rates at which the Executive's income is taxed under any applicable Federal, state, local and foreign laws and such rates shall be conclusive on the Company for purposes of determining the amount of the tax gross-up to be paid, and in no event shall the Executive be required to disclose his tax returns to the Company or otherwise for the purpose of determining the amount of the tax gross-up to be paid.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, 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 the Excise Tax imposed on all such payments and benefits and of the federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, upon the later of (i) five (5) days after the date the Executive notifies the Company of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.

Additional Payments. If, for any taxable year, Executive shall be liable for the payment of an excise tax under Section 4999 and/or Section 409A or other substitute or similar tax assessment (the “"Excise Tax”") of the Internal Revenue Code of 1986, as amended (the “"Code”"), including the corresponding provisions of any succeeding law, with respect to any payments or benefits under Section 9 of this Agreement or Sections 7 or 8 or any other provision of this Agreement, including but not limited to this Section 12 or any payments and/or benefits under this Agreement or under any benefit plan of the Company applicable to Executive individually or generally to executives or employees of the Company, then, notwithstanding any other provisions of this Agreement, the Company shall pay to the Executive Executive, subject to Section 15 hereof by paying the withholding for the Executive, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax imposed on all such payments and benefits and of the any federal, state and local income tax and Excise Tax imposed upon payments provided for in this Section 12, shall be equal to the payments and benefits due to the Executive hereunder and the payments and/or 118 benefits due to the Executive under any benefit plan of the Company. Each Gross-Up Payment shall be made to Executive or as provided in Section 16 hereof, good funds upon the later of (i) five (5) days after the date the Executive notifies the Company or the Company receives notice from the certified public accounting firm of its need to make such Gross-Up Payment, or (ii) the date of any payment causing the liability for such Excise Tax. The amount of any Gross-Up Payment under this section shall be computed by a nationally recognized certified public accounting firm designated jointly by the Company and the Executive. The cost of such services by the accounting firm shall be paid by the Company. If the Company and the Executive are unable to designate jointly the accounting firm, then the firm shall be the accounting firm used by the Company immediately prior to the Change in Control.