Common use of Determination of Gross-Up Payment Clause in Contracts

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement

Determination of Gross-Up Payment. Subject to sub-paragraph (c4(c) below, all determinations required to be made under this Section 6paragraph 4, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive within 30 thirty (30) days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph 4 (which accounting firm shall then be referred to as the "“Accounting Firm"”). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph 4 shall be promptly paid by the Company. Any A Gross-Up Payment (as determined pursuant to this paragraph 4) shall be paid by the Company to the Executive within 5 five (5) days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's ’s applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c4(c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowthe provisions of Section 4(c), all determinations required to be made under this Section 64, including whether and when a Gross-Up Payment is required and required, the amount of the such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm reasonably acceptable to the firm of independent public accountants selected Company and the Bank as may be designated by the Company to audit its financial statements for the year immediately preceding the Change in Control Executive (the "Accounting Firm") which shall provide detailed supporting calculations to the Company Company, the Bank and the Executive within 30 fifteen (15) business days after the date of the Executive's termination receipt of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, notice from the Executive may appoint another nationally recognized accounting firm to make that there has been a Payment, or such earlier time as is requested by the determinations required under this Section 6 (which accounting firm shall then be referred to as Company and the "Accounting Firm")Bank. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the CompanyCompany and the Bank. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by the Company to the Executive within 5 five business days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company Company, the Bank and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code Code, at the time of the initial determination by the Accounting FirmFirm hereunder, it is possible that a Gross-Up Payments which Payment will not have been made by the Company and the Bank which should have been made (an "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its and the Bank exhaust their remedies pursuant to sub-paragraph (cSection 4(c) below, and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company or the Bank to or for the Executive within 5 days after such determination. Amended and Restated Change in Control Agreementbenefit of the Executive.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all All determinations required to be made under this Section 67, including whether and when a Gross-Up Payment is required and the amount of the such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by the a nationally recognized certified public accounting firm of independent public accountants selected as may be mutually agreed by the Company to audit its financial statements for the year immediately preceding the Change in Control and Executive (the "“Accounting Firm"”) which shall provide detailed supporting calculations both to the Company and the Executive within 30 ten (10) business days after the date of the receipt of notice from Executive that Payments were made, or such earlier time as is required by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive's termination ’s residence or place of employment. In employment in the event calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm")highest marginal rates. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the Company. Any Gross-Up Payment Payment, as determined pursuant to this Section 7.2, shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive’s behalf) when due; provided, however, that such payment shall be made no later than (a) with respect to taxes, the end of Executive’s taxable year following the taxable year in which Executive within 5 days remits such taxes to the applicable taxing authority and (b) with respect to interest and penalties incurred by Executive with respect to such taxes, the end of Executive’s taxable year following the receipt taxable year in which Executive incurs such interest and/or penalties, as applicable. The amount of interest and penalties reimbursed by the Accounting Firm's determinationCompany during one calendar year shall not affect the amount of interest and penalties reimbursable by the Company during a subsequent calendar year, the right to such reimbursement may not be exchanged or substituted for other forms of compensation to Executive. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the so indicate to Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penaltywriting. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Code Section 4999 of the Code at the time of the initial determination by the Accounting Firm4999, it is possible that the amount of the Gross-Up Payments which will not have been made Payment determined by the Company should have been made Accounting Firm to be due to ("or on behalf of) Executive was lower than the amount actually required to be paid by Executive to the applicable taxing authority (“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, hereunder and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive; provided, however, that such Underpayment shall be made no later than the end of Executive’s taxable year following the taxable year in which Executive within 5 days after such determination. Amended and Restated Change in Control Agreementremits the Excise Tax to the applicable taxing authority.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowthe provisions of Section 4(c), all determinations required to be made under this Section 64, including whether and when a Gross-Up Payment is required and required, the amount of the such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by the a certified public accounting firm of independent public accountants selected by reasonably acceptable to the Company to audit its financial statements for the year immediately preceding the Change in Control as may be designated by Executive (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive within 30 fifteen (15) business days after the date of the Executive's termination receipt of employment. In notice from Executive that there has been a Payment, or such earlier time as is requested by the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm")Company. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the Company. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid solely by the Company to the Executive within 5 five business days of the later of (i) the due date for the payment of any Excise Tax, or (ii) the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code Code, at the time of the initial determination by the Accounting FirmFirm hereunder, it is possible that a Gross-Up Payments which Payment will not have been made by the Company which should have been made ("an “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4(c) below, and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the Executive within 5 days after such determination. Amended and Restated Change in Control Agreementbenefit of Executive.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.5(c) belowhereof, all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder (the amount of such additional payments, including any interest and penalties, being collectively referred to as the "Gross-Up Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowthe provisions of Section 15(c), all determinations required to be made under this Section 615, including whether and when a Gross-Up Payment is required and required, the amount of the such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by a certified public accounting firm reasonably acceptable to the firm of independent public accountants selected Company and the Bank as may be designated by the Company to audit its financial statements for the year immediately preceding the Change in Control Executive (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company Company, the Bank and the Executive within 30 fifteen (15) business days after the date of the Executive's termination receipt of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, notice from the Executive may appoint another nationally recognized accounting firm to make that there has been a Payment, or such earlier time as is requested by the determinations required under this Section 6 (which accounting firm shall then be referred to as Company and the "Accounting Firm")Bank. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the CompanyCompany and the Bank. Any Gross-Up Payment Payment, as determined pursuant to this Section 15, shall be paid by the Company to the Executive within 5 five business days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code Code, at the time of the initial determination by the Accounting FirmFirm hereunder, it is possible that a Gross-Up Payments which Payment will not have been made by the Company and the Bank which should have been made ("an “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its and the Bank exhaust their remedies pursuant to sub-paragraph (cSection 15(c) below, and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company or the Bank to or for the Executive within 5 days after such determination. Amended and Restated Change in Control Agreementbenefit of the Executive.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.4(c) belowhereof, all determinations required to be made under this Section 64.6.4, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.4(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder ("the amount of such additional payments, including any interest and penalties, being collectively referred to as the “Gross-Up Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.4(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-the provisions of paragraph (ciii) below, all determinations required to be made under this Section 617.e., including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall will be made by a national certified public accounting firm (the firm of independent public accountants “Accounting Firm”) selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Company. The Accounting Firm") which Firm shall provide detailed supporting calculations to both the Executive and the Company and the Executive within 30 fifteen (15) days after the later of the date of the Executive's Change in Control (or any other change in ownership or effective control of the Company that triggers application of the Excise Tax) or the date of the termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change employment of Control, the Executive may appoint another nationally recognized accounting firm to make with the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm")Company. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall will be promptly paid borne solely by the Company. Any For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment shall is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the actual reduction in federal income taxes which is reasonably expected to result from the deduction of such state or local taxes if paid in such year (determined, however, with regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment determined pursuant to this paragraph (ii) will be paid to the Executive by the Company to the Executive within 5 five (5) days of the receipt of after it receives the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall will furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's ’s applicable federal income tax return would will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall will be binding upon on both the Company Executive and the ExecutiveCompany. As Notwithstanding the foregoing, as a result of the uncertainty in the application of applying Section 4999 of the Code at the time of the initial determination by the Accounting FirmCode, it is possible that the Company will not have made Gross-Up Payments which will not have been made by the Company that it should have been made hereunder ("an “Underpayment"”). In the event that If the Company exhausts its remedies pursuant to sub-paragraph (ciii) below, hereof and the Executive is thereafter required to make a payment of pay any Excise Tax, the Accounting Firm shall promptly will determine the amount of the Underpayment that has occurred Underpayment, inform the Executive and any the Company in writing of the Underpayment, and, within five (5) days of receiving such written report, the Company will pay the amount of such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementExecutive.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowUpon prior written notice from the Executive, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount Company shall within 15 days following the earliest of the Gross-Up PaymentRetention Date, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding CIC Retention Date, the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after Date, or the date of the termination of Executive's termination of employment, cause the Accounting Firm to (i) make a determination whether any Payment received by Executive is subject to the Excise Tax, and (ii) provide supporting calculations and an analysis to Executive and the Company with respect to such a determination. In the event that the Accounting Firm determines that any Payment received by Executive is serving as accountant or auditor for subject to the individual, entity or group affecting the Change of ControlExcise Tax, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm Company shall then be referred to as the "Accounting Firm"). All fees and expenses of cause the Accounting Firm in connection with to determine the work it performs pursuant to this Section 6 shall be promptly paid by amount of the Company. Any applicable Gross-Up Payment shall be paid by owed to Executive in accordance with Section 5, and the Company to shall thereafter provide such Gross- Up Payment in accordance with Section 5.2. In the Executive within 5 days of the receipt of the Accounting Firm's determination. If event that the Accounting Firm determines that no any Payment received by Executive is not subject to the Excise Tax is payable by Tax, then the ExecutiveCompany shall cause the Accounting Firm to provide the Company, it which shall furnish the Executive with a copy, with a written opinion that failure the Company has substantial authority under the Code and Regulations not to withhold such an Excise Tax or report the such an Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penaltyW-2. Any determination or opinion by the Accounting Firm shall be binding upon Executive and the Company and with respect to whether the ExecutiveCompany is required to provide any Gross-Up Payment to Executive under this Section 5.1. As a result The Company shall pay all of the uncertainty in the application of Section 4999 fees and expenses of the Code at the time of the initial Accounting Firm relating to any determination by or opinion required under this Section 5.1. Notwithstanding the Accounting Firm's determination or opinion, it if a claim or notice of possible claim ultimately is possible that Gross-Up Payments which will not have been made asserted by the Company should have been Internal Revenue Service (the "Claim") that, if made ("Underpayment"). In and successful, would subject any Payment to the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment then Executive shall be paid by entitled to indemnification and the Company to the Executive within other rights and obligations as set forth in Section 5 days after such determination. Amended and Restated Change in Control of this Agreement.

Determination of Gross-Up Payment. Subject In the event that the aggregate of all payments or benefits made or provided to sub-paragraph (c) belowor for the benefit of, all determinations required to or that may be made or provided to or for the benefit of, the Executive under this Agreement and under all other plans, programs and arrangements of the Company and its affiliates (the “Aggregate Payment”) is determined to constitute a “parachute payment” (as such term is defined in Section 6280G(b)(2) of the Code), including whether a the Company shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Code (the “Excise Tax”) is payable with respect to such Aggregate Payment, an additional amount (the “Gross-Up Payment”) such that, after the imposition and payment of all income and excise taxes thereon (and any interest or penalties imposed with respect to such taxes) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Aggregate Payment. Notwithstanding the foregoing provisions of this Section 13, if it shall be determined that the Executive is required entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of the Aggregate Payment does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Parachute Value of the Aggregate Payment equals the Safe Harbor Amount. The reduction of the amounts payable under this Agreement, if applicable, shall be made by reducing the payments or benefits under the following Sections in the following order (to the extent such payments or benefits constitute parachute payments): (i) Section 7(c)(iv); and (ii) Section 7(c)(iii). If the reduction of the amounts payable under this Agreement would not result in a reduction of the Parachute Value of the Aggregate Payment to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 13 and the Executive shall be entitled to the Gross-Up Payment. All determinations under this Section 13, including whether the Aggregate Payment constitutes a parachute payment exceeding 110% of the Safe Harbor Amount and the amount of the Gross-Up PaymentPayment to be paid to the Executive pursuant to this Section 13, shall be made by an independent auditor (the firm of independent public accountants “Auditor”) jointly selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted as the primary auditor on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on the firm to serve as the Auditor, then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. Notwithstanding the foregoing, in the event that the amount of the Executive’s Excise Tax liability is subsequently determined to be greater than the Excise Tax liability with respect to which an initial Gross-Up Payment to the Executive under this Section 13 has been made, the Company shall pay to the Executive an additional amount with respect to such additional Excise Tax (and any interest and penalties thereon) in the amount determined by the Auditor so as to make the Executive whole, on an after-tax basis, with respect to such Excise Tax (and any interest and penalties thereon) and such additional amount paid by the Company. In the event the amount of the Executive’s Excise Tax liability is subsequently determined to be less than the Excise Tax liability with respect to which any payment to the Executive has been made under this Section 13, the Executive shall, as soon as practical after the determination is made (or in the case of an amount for which the Executive must seek a refund, the receipt of such refund), pay to the Company the amount of the overpayment by the Company, reduced by the amount of any relevant taxes already paid by the Executive and not refundable, all as determined by the Auditor. The Executive and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Executive in connection therewith shall be paid by the Company to the Executive within 5 days promptly upon notice of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and demand from the Executive. As a result of The Company’s obligation to make the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will under this Section 13 shall not have been be conditioned upon the Executive’s termination of employment. Any payment made by to or on behalf of the Company should have been Executive under this Section 13 shall be made ("Underpayment"). In in compliance with Code Section 409A and in no event later than the event end of the Executive’s taxable year following the Executive’s taxable year that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company related taxes are remitted to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreementapplicable taxing authority.

Determination of Gross-Up Payment. Subject to sub-paragraph (c4(h)(iii) below, all determinations required to be made under this Section 6paragraph 4(h)(i), including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 thirty (30) days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph 4(h) (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph 4(h) shall be promptly paid by the Company. Any Gross-Up Payment (as determined pursuant to paragraph 4(h)(i) above) shall be paid by the Company to the Executive within 5 five (5) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c4(h)(iii) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c4(g)(iii) below, all determinations required to be made under this Section 6paragraph 4(g)(i), including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 thirty (30) days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph 4(g) (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph 4(g) shall be promptly paid by the Company. Any An Gross-Up Payment (as determined pursuant to paragraph 4(g)(i) above) shall be paid by the Company to the Executive within 5 five (5) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c4(g)(iii) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 64, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control Xxxxxx Xxxxxxxx LLP (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 4 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 4 shall be promptly paid by the CompanyCompany or Best Buy. Any Gross-Up Payment shall be paid by the Company or Best Buy to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company or Best Buy should have been made ("Underpayment"). In the event that the Company or Best Buy exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company or Best Buy to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-the --------------------------------- provisions of paragraph (c) below7.3, all determinations required to be made under this Section 6paragraph 7, including the determination of whether a Gross-Up Payment is required and of the amount of the any such Gross-Up Payment, shall be made by the firm of independent public accountants tax counsel selected by the Company independent public accounting firm then retained by SPI to audit its financial statements for the year immediately preceding the Change in Control and acceptable to SPI (the "Accounting FirmTax Counsel") ), which shall provide detailed supporting calculations to the Company both SPI and the Executive within 30 15 business days after of the date of termination, if applicable, or such earlier time as is requested by SPI, provided that any determination that an Excise Tax is payable by Executive shall be made on the Executive's termination basis of employmentsubstantial authority. In SPI shall pay the event that the Accounting Firm is serving initial Gross-Up Payment, if any, as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs determined pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company paragraph 7.2, to the Executive within 5 five business days of the receipt of the Accounting FirmTax Counsel's determination. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable federal his Federal income tax return would not result in the imposition of a penaltyreturn. Any determination by Tax Counsel meeting the Accounting Firm requirements of this paragraph 7.2 shall be binding upon SPI and Executive; subject only to payments pursuant to the Company and the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made under this paragraph 7 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In the event that the Company If SPI exhausts its remedies pursuant to sub-paragraph (c) below7.3, and the Executive is thereafter required to make a payment of any Excise Tax, the Accounting Firm Tax Counsel shall promptly determine the amount of the Gross-Up Underpayment that has occurred and SPI shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive. SPI shall be paid by pay the Company to the Executive within 5 days after such determination. Amended fees and Restated Change in Control Agreementdisbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowSection 3.3, all determinations required to be made under this Section 6Article 3, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which ). The Accounting Firm shall provide detailed supporting calculations to the Company and the Executive within 30 thirty (30) days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 Article 3 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 Article 3 shall be promptly paid by the Company. Any Gross-Up Payment (as determined pursuant to this Article 3) shall be paid by the Company to the Executive within 5 five (5) days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) belowSection 3.3, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all All determinations required to be made under this Section 64.1, including whether and when a Gross-Up Payment is required and required, the amount of the such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by the Company's regular independent accounting firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 30 15 business days after the date of the Executive's termination receipt of employmentnotice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 hereunder (which accounting firm shall then be referred to as the "Accounting Firm"Firm hereunder). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 15 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting FirmFirm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the Executive within 5 days after such determinationbenefit of the Executive. Amended and Restated Change in Control AgreementSECTION 5

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6Agreement or under the Award Agreements, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the a Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive Cxxxxx within 30 thirty (30) days after the date of the Executive's termination of employmenta Payment is made. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may Cxxxxx shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph (which accounting firm shall then be referred to as the "“Accounting Firm"”). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph shall be promptly paid by the Company. Any A Gross-Up Payment (as determined pursuant to this paragraph) shall be paid by the Company to the Executive Cxxxxx within 5 five (5) days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the ExecutiveCxxxxx, it shall furnish the Executive Cxxxxx with a written opinion that failure to report the Excise Tax on the Executive's Cxxxxx’x applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the ExecutiveCxxxxx. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive Cxxxxx is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive Cxxxxx within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowthe provisions of Section 7.3, all determinations required to be made under this Section 67, including the determination of whether a Gross-Up Payment is required and of the amount of the any such Gross-Up Payment, shall be made by the firm of independent public accountants tax counsel selected by the Company independent public accounting firm then retained by SPI to audit its financial statements for the year immediately preceding the Change in Control and acceptable to SPI (the "Accounting FirmTax Counsel") ), which shall provide detailed supporting calculations to the Company both SPI and the Executive within 30 15 business days after of the date of the termination of Executive's termination employment, if applicable, or such earlier time as is requested by SPI, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of employmentsubstantial authority. In SPI shall pay the event that the Accounting Firm is serving initial Gross-Up Payment, if any, as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs determined pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company 7.2, to the Executive within 5 five business days of the receipt of the Accounting FirmTax Counsel's determination. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable federal his Federal income tax return would not result in the imposition of a penaltyreturn. Any determination by Tax Counsel meeting the Accounting Firm requirements of this Section 7.2 shall be binding upon SPI and Executive; subject only to payments pursuant to the Company and the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made under this Section 7 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In the event that the Company If SPI exhausts its remedies pursuant to sub-paragraph (c) belowSection 7.3, and the Executive is thereafter required to make a payment of any Excise Tax, the Accounting Firm Tax Counsel shall promptly determine the amount of the Gross-Up Underpayment that has occurred and SPI shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive. SPI shall be paid by pay the Company to the Executive within 5 days after such determination. Amended fees and Restated Change in Control Agreementdisbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to sub-paragraph (c3(c) below, all determinations required to be made under this Section 6paragraph 2, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive within 30 thirty (30) days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph 3 (which accounting firm shall then be referred to as the "“Accounting Firm"”). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph 3 shall be promptly paid by the Company. Any A Gross-Up Payment (as determined pursuant to this paragraph 3) shall be paid by the Company to the Executive within 5 five (5) days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's ’s applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up up Payments which will not have been made by the Company should have been made ("“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c3(c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 65.7, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in of Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 5.7 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 5.7 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowUpon prior written notice from the Executive, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount Company shall within 15 days following the earliest of the Gross-Up PaymentRetention Date, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding CIC Retention Date, the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after Date, or the date of the termination of Executive's termination of employment, cause the Accounting Firm to (i) make a determination whether any Payment received by Executive is subject to the Excise Tax, and (ii) provide supporting calculations and an analysis to Executive and the Company with respect to such a determination. In the event that the Accounting Firm determines that any Payment received by Executive is serving as accountant or auditor for subject to the individual, entity or group affecting the Change of ControlExcise Tax, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm Company shall then be referred to as the "Accounting Firm"). All fees and expenses of cause the Accounting Firm in connection with to determine the work it performs pursuant to this Section 6 shall be promptly paid by amount of the Company. Any applicable Gross-Up Payment shall be paid by owed to Executive in accordance with Section 5, and the Company to shall thereafter provide such Gross-Up Payment in accordance with Section 5.2. In the Executive within 5 days of the receipt of the Accounting Firm's determination. If event that the Accounting Firm determines that no any Payment received by Executive is not subject to the Excise Tax is payable by Tax, then the ExecutiveCompany shall cause the Accounting Firm to provide the Company, it which shall furnish the Executive with a copy, with a written opinion that failure the Company has substantial authority under the Code and Regulations not to withhold such an Excise Tax or report the such an Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penaltyW-2. Any determination or opinion by the Accounting Firm shall be binding upon Executive and the Company and with respect to whether the ExecutiveCompany is required to provide any Gross-Up Payment to Executive under this Section 5.1. As a result The Company shall pay all of the uncertainty in the application of Section 4999 fees and expenses of the Code at the time of the initial Accounting Firm relating to any determination by or opinion required under this Section 5.1. Notwithstanding the Accounting Firm's determination or opinion, it if a claim or notice of possible claim ultimately is possible that Gross-Up Payments which will not have been made asserted by the Company should have been Internal Revenue Service (the "Claim") that, if made ("Underpayment"). In and successful, would subject any Payment to the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment then Executive shall be paid by entitled to indemnification and the Company to the Executive within other rights and obligations as set forth in Section 5 days after such determination. Amended and Restated Change in Control of this Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.5(c) belowhereof, all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the Gross-any Gross Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any Gross-initial Gross Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-additional Gross Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder ("the amount of such additional payments, including any interest and penalties, being collectively referred to as the “Gross Up Underpayment"” ). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross Up Underpayment that has occurred and any such Gross Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.5(c) belowhereof, all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure she has substantial authority not to report the any Excise Tax on the Executive's applicable her federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder (the amount of such additional payments, including any interest and penalties, being collectively referred to as the "Gross-Up Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.4(c) belowhereof, all determinations required to be made under this Section 64.6.4, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure she has substantial authority not to report the any Excise Tax on the Executive's applicable her federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.4(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder ("the amount of such additional payments, including any interest and penalties, being collectively referred to as the “Gross-Up Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.4(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowUpon prior written notice from the Executive, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount Company shall within 15 days following the earliest of the Gross-Up PaymentRetention Date, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after Date, or the date of the termination of Executive's termination of employment, cause the Accounting Firm to (i) make a determination whether any Payment received by Executive is subject to the Excise Tax, and (ii) provide supporting calculations and an analysis to Executive and the Company with respect to such a determination. In the event that the Accounting Firm determines that any Payment received by Executive is serving as accountant or auditor for subject to the individual, entity or group affecting the Change of ControlExcise Tax, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm Company shall then be referred to as the "Accounting Firm"). All fees and expenses of cause the Accounting Firm in connection with to determine the work it performs pursuant to this Section 6 shall be promptly paid by amount of the Company. Any applicable Gross-Up Payment shall be paid by owed to Executive in accordance with Section 5, and the Company to shall thereafter provide such Gross-Up Payment in accordance with Section 5.2. In the Executive within 5 days of the receipt of the Accounting Firm's determination. If event that the Accounting Firm determines that no any Payment received by Executive is not subject to the Excise Tax is payable by Tax, then the ExecutiveCompany shall cause the Accounting Firm to provide the Company, it which shall furnish the Executive with a copy, with a written opinion that failure the Company has substantial authority under the Code and Regulations not to withhold such an Excise Tax or report the such an Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penaltyW-2. Any determination or opinion by the Accounting Firm shall be binding upon Executive and the Company and with respect to whether the ExecutiveCompany is required to provide any Gross-Up Payment to Executive under this Section 5.1. As a result The Company shall pay all of the uncertainty in the application of Section 4999 fees and expenses of the Code at the time of the initial Accounting Firm relating to any determination by or opinion required under this Section 5.1. Notwithstanding the Accounting Firm's determination or opinion, it if a claim or notice of possible claim ultimately is possible that Gross-Up Payments which will not have been made asserted by the Company should have been Internal Revenue Service (the "Claim") that, if made ("Underpayment"). In and successful, would subject any Payment to the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment then Executive shall be paid by entitled to indemnification and the Company to the Executive within other rights and obligations as set forth in Section 5 days after such determination. Amended and Restated Change in Control of this Agreement.

Determination of Gross-Up Payment. Subject to sub-the provisions of paragraph (c) below6.3, all determinations required to be made under this Section paragraph 6, including the determination of whether a Gross-Gross Up Payment is required and of the amount of the Gross-any such Gross Up Payment, shall be made by the firm of independent public accountants tax counsel selected by the Company independent public accounting firm then retained by SPI to audit its financial statements for the year immediately preceding the Change in Control and acceptable to SPI (the "Accounting FirmTax Counsel") ), which shall provide detailed supporting calculations to the Company both SPI and the Executive within 30 15 business days after of the date of termination, if applicable, or such earlier time as is requested by SPI, provided that any determination that an Excise Tax is payable by Executive shall be made on the Executive's termination basis of employmentsubstantial authority. In SPI shall pay the event that the Accounting Firm is serving initial Gross Up Payment, if any, as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs determined pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company paragraph 6.2, to the Executive within 5 five business days of the receipt of the Accounting FirmTax Counsel's determination. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable federal his Federal income tax return would not result in the imposition of a penaltyreturn. Any determination by Tax Counsel meeting the Accounting Firm requirements of this paragraph 6.2 shall be binding upon SPI and Executive; subject only to payments pursuant to the Company and the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-additional Gross Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made under this paragraph 6 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross Up Underpayment"). In the event that the Company If SPI exhausts its remedies pursuant to sub-paragraph (c) below6.3, and the Executive is thereafter required to make a payment of any Excise Tax, the Accounting Firm Tax Counsel shall promptly determine the amount of the Gross Up Underpayment that has occurred and SPI shall promptly pay any such Gross Up Underpayment to or for the benefit of Executive. SPI shall be paid by pay the Company to the Executive within 5 days after such determination. Amended fees and Restated Change in Control Agreementdisbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to sub-the provisions of paragraph (c) below7.3, all determinations required to be made under this Section 6paragraph 7, including the determination of whether a Gross-Up Payment is required and of the amount of the any such Gross-Up Payment, shall be made by the firm of independent public accountants tax counsel selected by the Company independent public accounting firm then retained by SPI to audit its financial statements for the year immediately preceding the Change in Control and acceptable to SPI (the "Accounting FirmTax Counsel") ), which shall provide detailed supporting calculations to the Company both SPI and the Executive within 30 15 business days after of the date of termination, if applicable, or such earlier time as is requested by SPI, provided that any determination that an Excise Tax is payable by Executive shall be made on the Executive's termination basis of employmentsubstantial authority. In SPI shall pay the event that the Accounting Firm is serving initial Gross-Up Payment, if any, as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs determined pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company paragraph 7.2, to the Executive within 5 five business days of the receipt of the Accounting FirmTax Counsel's determination. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable federal his Federal income tax return would not result in the imposition of a penaltyreturn. Any determination by Tax Counsel meeting the Accounting Firm requirements of this paragraph 7.2 shall be binding upon SPI and Executive; subject only to payments pursuant to the Company and the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made under this paragraph 7 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In the event that the Company If SPI exhausts its remedies pursuant to sub-paragraph (c) below7.3, and the Executive is thereafter required to make a payment of any Excise Tax, the Accounting Firm Tax Counsel shall promptly determine the amount of the Gross-Up Underpayment that has occurred and SPI shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive. SPI shall be paid by pay the Company to the Executive within 5 days after such determination. Amended fees and Restated Change in Control Agreementdisbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's ’s termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "“Accounting Firm"”). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's ’s applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within Change in Control Agreement 5 days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowthe provisions of Section 4.6.5(c), all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by the Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and the Executive. As ; subject only to payments pursuant to the following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder ("the amount of such additional payments, including any interest and penalties, being collectively referred to as the “Gross-Up Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.5(c) belowhereof, all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the Gross-any Gross Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any Gross-initial Gross Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-additional Gross Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder (the amount of such additional payments, including any interest and penalties, being collectively referred to as the "Gross Up Underpayment"" ). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross Up Underpayment that has occurred and any such Gross Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below3(c), all determinations required to be made under this Section 6paragraph 3, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employmentTermination Date. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph 3 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph 3 shall be promptly paid by the Company. Any Gross-Up Payment (as determined pursuant to this paragraph 3) shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Gross- Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below3(c), and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 65.7, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of in Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 5.7 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 5.7 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6Supplement, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide detailed supporting calculations to the Company and the Executive Xxxxxx within 30 thirty (30) days after the date of the Executive's termination of employmenta Payment is made. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting effecting the Change of in Control, the Executive may Xxxxxx shall appoint another nationally recognized accounting firm to make the determinations required under this Section 6 paragraph (which accounting firm shall then be referred to as the "“Accounting Firm"”). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 paragraph shall be promptly paid by the Company. Any A Gross-Up Payment (as determined pursuant to this paragraph) shall be paid by the Company to the Executive Xxxxxx within 5 five (5) days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the ExecutiveXxxxxx, it shall furnish the Executive Xxxxxx with a written opinion that failure to report the Excise Tax on the Executive's Xxxxxx’x applicable federal income tax return would not result in the imposition of a negligence or a similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the ExecutiveXxxxxx. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("“Underpayment"”). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive Xxxxxx is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive Xxxxxx within 5 five (5) days after such determination. Amended and Restated Change in Control Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) belowUpon prior written notice from the Executive, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and FEI shall within 15 days following the amount later of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Change of Control or the date of Termination of Executive's termination of employment’s Employment cause the accounting firm that is FEI’s auditors or such other accounting firm that is mutually acceptable to FEI and Executive (the “Accounting Firm”) to (a) make a determination whether any Payment received by Executive is subject to the Excise Tax and (b) provide supporting calculations and an analysis to Executive and FEI with respect to such a determination. In the event that the Accounting Firm determines that any Payment received by Executive is serving as accountant or auditor for subject to the individualExcise Tax, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm FEI shall then be referred to as the "Accounting Firm"). All fees and expenses of cause the Accounting Firm in connection with to determine the work it performs pursuant to this Section 6 shall be promptly paid by amount of the Company. Any applicable Gross-Up Payment owed to Executive in accordance with Section 4, and FEI shall be paid by thereafter provide such Gross-Up Payment in accordance with Section 4.2. In the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If event that the Accounting Firm determines that no any Payment received by Executive is not subject to the Excise Tax is payable by Tax, then FEI shall cause the ExecutiveAccounting Firm to provide FEI, it which shall furnish the Executive with a copy, with a written opinion that failure FEI has substantial authority for purposes of the Code and applicable regulations not to withhold such an Excise Tax or report the such an Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty’s W-2. Any determination or opinion by the Accounting Firm shall be binding upon the Company Executive and the ExecutiveFEI with respect to whether FEI is required to provide any Gross-Up Payment to Executive under this Section 4.1. As a result FEI shall pay all of the uncertainty in the application of Section 4999 fees and expenses of the Code at the time of the initial Accounting Firm relating to any determination by or opinion required under this Section 4.1. Notwithstanding the Accounting Firm’s determination or opinion, it if a claim or notice of possible claim ultimately is possible that Gross-Up Payments which will not have been made asserted by the Company should have been Internal Revenue Service (the “Claim”) that, if made ("Underpayment"). In and successful, would subject any Payment to the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment then Executive shall be paid by entitled to indemnification and the Company to the Executive within 5 days after such determination. Amended other rights and Restated Change obligations as set forth in Control Section 4 of this Agreement.

Determination of Gross-Up Payment. Subject to sub-paragraph the provisions of subparagraph (ciii) below, all determinations required to be made under this Section 618.f., including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall will be made by a national certified public accounting firm (the firm of independent public accountants “Accounting Firm”) selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Company. The Accounting Firm") which Firm shall provide detailed supporting calculations to both the Executive and the Company and the Executive within 30 fifteen (15) days after the later of the date of the Executive's Change of Control (or any other change in ownership or effective control of the Company that triggers application of the Excise Tax) or the date of the termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change employment of Control, the Executive may appoint another nationally recognized accounting firm to make with the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm")Company. All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall will be promptly paid borne solely by the Company. Any For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment shall is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the actual reduction in federal income taxes which is reasonably expected to result from the deduction of such state or local taxes if paid in such year (determined, however, with regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income). The initial Gross-Up Payment determined pursuant to this paragraph (ii) will be paid to the Executive by the Company to the Executive within 5 five (5) days of the receipt of after it receives the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall will furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's ’s applicable federal income tax return would will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall will be binding upon on both the Company Executive and the ExecutiveCompany. As Notwithstanding the foregoing, as a result of the uncertainty in the application of applying Section 4999 of the Code at the time of the initial determination by the Accounting FirmCode, it is possible that the Company will not have made Gross-Up Payments which will not have been made by the Company that it should have been made hereunder ("an “Underpayment"”). In the event that If the Company exhausts its remedies pursuant to sub-paragraph (ciii) below, hereof and the Executive is thereafter required to make a payment of pay any Excise Tax, the Accounting Firm shall promptly will determine the amount of the Underpayment that has occurred Underpayment, inform the Executive and any the Company in writing of the Underpayment, and, within five (5) days of receiving such written report, the Company will pay the amount of such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementExecutive.

Determination of Gross-Up Payment. Subject to sub-paragraph (cthe provisions of Section 4.6.5(c) belowhereof, all determinations required to be made under this Section 64.6.5, including whether a Gross-Up Payment is required determination of the requirement for and the amount of the any Gross-Up Payment, shall be made by the firm of independent public accountants selected accounting firm which is then retained by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 30 thirty (30) business days after of the date of the Executive's termination of employment. In the event that the Accounting Firm such termination, if applicable, or such earlier time as is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Any initial Gross-Up Payment shall be paid by the Company to the Executive within 5 fifteen (15) business days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable his federal income tax return would not result in the imposition of a penaltyreturn. Any determination by the Accounting Firm meeting the requirements of this Section 4.6.5(b) shall be binding upon the Company and Executive; subject only to payments pursuant to the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made hereunder (the amount of such additional payments, including any interest and penalties, being collectively referred to as the "Gross-Up Underpayment"" ). In the event that the Company exhausts its remedies pursuant to sub-paragraph (cSection 4.6.5(c) below, hereof and the Executive thereafter is thereafter required to make a payment of any Excise Tax, the Accounting Firm shall promptly determine the amount of the Gross-Up Underpayment that has occurred and any such Gross-Up Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control AgreementCompany.

Determination of Gross-Up Payment. Subject to sub-the provisions --------------------------------- of paragraph (c) below7.3, all determinations required to be made under this Section 6paragraph 7, including the determination of whether a Gross-Up Payment is required and of the amount of the any such Gross-Up Payment, shall be made by the firm of independent public accountants tax counsel selected by the Company independent public accounting firm then retained by SPI to audit its financial statements for the year immediately preceding the Change in Control and acceptable to SPI (the "Accounting FirmTax Counsel") ), which shall provide detailed supporting calculations to the Company both SPI and the Executive within 30 15 business days after of the date of termination, if applicable, or such earlier time as is requested by SPI, provided that any determination that an Excise Tax is payable by Executive shall be made on the Executive's termination basis of employmentsubstantial authority. In SPI shall pay the event that the Accounting Firm is serving initial Gross-Up Payment, if any, as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs determined pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company paragraph 7.2, to the Executive within 5 five business days of the receipt of the Accounting FirmTax Counsel's determination. If the Accounting Firm Tax Counsel determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure he has substantial authority not to report the any Excise Tax on the Executive's applicable federal his Federal income tax return would not result in the imposition of a penaltyreturn. Any determination by Tax Counsel meeting the Accounting Firm requirements of this paragraph 7.2 shall be binding upon SPI and Executive; subject only to payments pursuant to the Company and the Executive. As following sentence based on a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that additional Gross-Up Payments which will not have been made by the Company should have been made, consistent with the calculations required to be made under this paragraph 7 (the amount of such additional payments, including any interest and penalties, are referred as the "Gross-Up Underpayment"). In the event that the Company If SPI exhausts its remedies pursuant to sub-paragraph (c) below7.3, and the Executive is thereafter required to make a payment of any Excise Tax, the Accounting Firm Tax Counsel shall promptly determine the amount of the Gross-Up Underpayment that has occurred and SPI shall promptly pay any such Gross-Up Underpayment to or for the benefit of Executive. SPI shall be paid by pay the Company to the Executive within 5 days after such determination. Amended fees and Restated Change in Control Agreementdisbursements of Tax Counsel.

Determination of Gross-Up Payment. Subject to sub-paragraph (c) below, all All determinations required to be made under this Section 6Article VI, including whether a Gross-Up Payment is required and the amount of the such Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company United to audit its financial statements for the year immediately preceding the Change in Control (the "“Accounting Firm"”) which shall provide provide, no later than thirty days prior to the last day of Xxxxx’ taxable year next following the taxable year in which Xxxxx remits any such Excise Taxes, detailed supporting calculations both to the Company United and the Executive within 30 days after the date of the Executive's termination of employmentXxxxx. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the effecting a “Change of in Control, the Executive may ,” Xxxxx shall appoint another nationally recognized accounting firm to make make, no later than thirty days prior to the last day of Xxxxx’ taxable year next following the taxable year in which Xxxxx remits any such Excise Taxes, the determinations required under this Section 6 hereunder (which accounting firm shall then be referred to as the "Accounting Firm"Firm hereunder). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid borne solely by the CompanyUnited. Any Gross-Up Payment Payment, as determined pursuant to this Article VI, shall be paid by the Company to the Executive Xxxxx within 5 30 days of the receipt of the Accounting Firm's ’s determination. If , or the Accounting Firm determines that no Excise Tax is payable by last day of Xxxxx’ taxable year next following the Executive, it shall furnish the Executive with a written opinion that failure to report taxable year in which Xxxxx remits the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Taxes with respect to which such Gross-Up Payments which will not have been made by Payment is made, whichever is earlier, all subject to the Company should have been made ("Underpayment"). In provisions of Section III G so that in the event that any Gross-Up Payment would be payable hereunder on or before the Company exhausts its remedies pursuant to sub-paragraph (c) belowdate which is six months after a Separation of Service of Xxxxx other than by death, and such payment shall instead be made on the Executive date which is thereafter required to make a payment six months after the date of Excise Tax, the Accounting Firm shall promptly determine the amount such Separation of the Underpayment that has occurred and any such Underpayment shall be paid Service of Xxxxx other than by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreementdeath.