Common use of Additional Payment Clause in Contracts

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 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 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 Section 10.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to benefit provided to, or for the benefit of of, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 6) (a "“Payment"), ”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto), employment taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 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 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 Section 10.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on Notwithstanding the foregoing provisions of this Section 10.36(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $25,000 (taking into account income taxes, employment taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Limited Payment Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then the following shall apply: (i) No Gross-Up Payment shall be made to the Executive. (ii) The Payments, in the aggregate, shall be reduced to the Limited Payment Amount, and in that case, unless the Executive and the Company shall otherwise agree, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue reduce or forgo any and all administrative appeals, proceedings, hearings and conferences with eliminate the taxing authority in respect of such claim and may, at its sole option, either direct Payments to the Executive by first reducing or eliminating those payments or benefits which are not payable in cash and then by reducing or eliminating cash payments, in each case in reverse order beginning with payments or benefits which are to pay be paid the tax claimed farthest in time from the Determination (as hereinafter defined). Any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and sue for a refund entitlements to any benefits or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest compensation. (iii) If it is established pursuant to a final determination before any administrative tribunal, in of a court of initial jurisdiction or an Internal Revenue Service (the “IRS”) proceeding which has been finally and in one or more appellate courts, as the Company shall determine; provided, howeverconclusively resolved, that if Payments which should have been limited to the Company directs Limited Payment Amount have been made to, or provided for the benefit of, the Executive by the Company, which are in excess of the limitations provided in Section 6(a) (hereinafter referred to pay as an “Excess Payment”), such claim and sue Excess Payment shall be deemed for all purposes to be a refund, the Company shall advance the amount of such paymexx loan to the Executive, Executive made on an interest-free basis, and shall indemnify and hold the date the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of received the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Excess Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as repay the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay Excess Payment to the Company on demand, together with interest on the amount Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after Excess Payment until the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount date of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidrepayment. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement Unless the Compensation Committee of the Board of Directors determines to the contrary notwithstandingcontrary, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive as provided under subsection (a "Payment"b), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall will be entitled to receive an additional payment (a "Gross-Up Reimbursement Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and 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 Compensation Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject (1) The Professional Services Firm, at Xxxxxxx'x expense, will make an initial determination as to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Reimbursement Payment is required and the amount of such Gross-Up Reimbursement Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which . The Professional Services Firm shall provide its determination, together with detailed supporting calculations both and documentation to the Company Xxxxxxx and the Executive within fifteen business thirty (30) days of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five days of the receipt of the Accounting Firm's determinationTermination Date. If the Accounting Professional Services Firm determines that no Excise Tax is will be payable by Executive with respect to the ExecutiveCompensation Payments, it shall furnish the Executive with an 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 similar penalty. Any The determination by the Accounting Firm shall be binding binding, final and conclusive upon the Company Xxxxxxx and the Executive. As a result of the uncertainty in , subject to the application of Section 4999 paragraph (3) of this subsection. (2) Xxxxxxx shall pay any Reimbursement Payment to Executive within five days of the Code at the time receipt of the initial determination by the Accounting Firm hereunder, it Professional Services Firm's determination. (3) If a Reimbursement Payment is possible paid that Gross-Up Payments which will should not have been made by the Company paid (an "Excess Payment"), or if a Reimbursement Payment is not paid that should have been made paid (an "Underpayment"), consistent the Excess Payment or Underpayment shall be corrected as provided in this paragraph (3). An Underpayment shall be deemed to have occurred (i) upon notice to Executive from any governmental taxing authority that Executive's tax liability for any taxable year may be increased by imposition of the Excise Tax on a Compensation Payment with the calculations required respect to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 and the Executive thereafter is required which Xxxxxxx has failed to make a payment sufficient Reimbursement Payment; (ii) upon a determination by a court; (iii) by reason of any Excise Taxdetermination by Xxxxxxx (which shall include the position taken by Xxxxxxx, together with its consolidated group, on its federal income tax return); or (iv) upon the Accounting Firm resolution of a dispute to Executive's satisfaction. If an Underpayment occurs, Executive shall determine promptly notify Xxxxxxx, and Xxxxxxx shall pay to Executive promptly, at least five days prior to due date of the requested tax payment, an additional Reimbursement Payment equal to the amount of the Underpayment that has occurred and plus any such Underpayment interest, penalties, additional taxes or similar items imposed on the Underpayment. An Excess Payment shall be promptly paid deemed to have occurred when Executive has received from the applicable government taxing authority a refund of taxes or other reduction in Executive's tax liability by the Company to or for the benefit reason of the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim Excise Payment and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: upon either (i) give the Company any information reasonably requested date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority that finally and conclusively binds Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the Company relating to such claim; time for all appeals has expired or (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amountExecutive's applicable tax return has expired. FurthermoreIn that event, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company Xxxxxxx the amount of such refund the Excess Payment (together with any interest paid or credited thereon after taxes applicable thereto). If. (4) In the event that, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior according to the expiration of 30 days after such Professional Services Firm's determination, then such advance an Excise Tax will be imposed on any Compensation Payment, Xxxxxxx shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, pay to the extent thereofapplicable government taxing authorities, as Excise Tax withholding, the amount of Gross-Up Payment required to be paidthe Excise Tax that Xxxxxxx has actually withheld from the Compensation Payments. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in (a) In the event that payments or benefits made or provided to the Executive under this Agreement to the contrary notwithstandingand under any other plan, in the event it shall be determined that any payment program or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit agreement of the Executive Company, or any of their respective affiliates (a "the “Aggregate Payment"), would be ”) are or become subject to the excise tax imposed by Section 4999 of Excise Tax, the Code or any interest or penalties are incurred Company shall pay to the Executive an additional amount (the “Additional Payment”) such that the net amount retained by the Executive with respect to such excise the Aggregate Payment, after deduction of any Excise Tax on the Aggregate Payment and any Federal, state and local income tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon on the Gross-Up Additional Payment (and any interest and penalties thereon), but before deduction for any Federal, state or local income or employment tax withholding on such Aggregate Payment, shall be equal to the Executive retains an amount of the Gross-Up Aggregate Payment. (b) The determination of whether the Aggregate Payment equal will be subject to the Excise Tax imposed upon and, if so, the Payments. The Company will attempt amount to minimize any Excise Tax, including accelerating payments be paid to the Executive if possible, however if and the Payment results in an Excise Tax and reducing the Payment by up time of payment pursuant to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, 9 shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the CompanyAuditor. All fees and expenses of the Accounting Firm Auditor shall be borne solely by the Company. The initial Gross-Up . (c) For purposes of determining the amount of the Additional Payment, if any, as determined pursuant to this Section 10.2, the Executive shall be paid deemed to pay: (i) Federal income taxes at the Executive within five days highest applicable marginal rate of Federal income taxation for the calendar year in which the Additional Payment is to be made, and (ii) Any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Additional Payment is to be made, net of the receipt maximum reduction in Federal incomes taxes which could be obtained from the deduction of such state or local taxes if paid in such year. (d) In the Accounting Firm's determination. If event that the Accounting Firm determines that no Excise Tax is payable subsequently determined by the ExecutiveAuditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder in calculating the Additional Payment made, it Executive shall furnish repay to the Executive with an opinion Company, at the time that failure to report the amount of such reduction in the Excise Tax on is finally determined, the Executive's applicable federal income tax return portion of such prior Additional Payment that would not result have been paid if such Excise Tax had been applied in initially calculating such Additional Payment. (e) In the imposition of a negligence or similar penalty. Any determination event that the Excise Tax is subsequently determined by the Accounting Firm shall Auditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Additional Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code determined at the time of the initial determination by the Accounting Firm hereunderAdditional Payment), 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 Section 10.3 and the Executive thereafter is required to shall make a an additional payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows respect of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalty payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authorityfinally determined. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive then you shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive you of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Executive retains Code, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company will attempt to minimize any Excise TaxNotwithstanding the foregoing provisions of this paragraph, including accelerating payments if it shall be determined that you are entitled to the Executive Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to you, and the Payments shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the Payments, if possibleapplicable, however if the Payment results in an Excise Tax and shall be made by reducing the Payment by up to 10% eliminates the Excise Tax cash payment first and then the Executive agrees Medical Benefits. For purposes of reducing the Payments to reduce the Payment Safe Harbor Amount, only amounts payable under this Agreement (by up to 10%and no other Payments) until it does not trigger an Excise Taxshall be reduced. If any Excise Tax the reduction of the Payments would still exist after not result in a reduction of the aforementioned reduction in Parachute Value of all Payments to the Payment then there Safe Harbor Amount, no Payments shall be no reduction in the Payment. 10.2 reduced pursuant to this Agreement. The Company’s obligation to make Gross-Up Payments under this Agreement shall not be conditioned upon your termination of employment. Subject to the provisions of Section 10.3the following paragraphs, all determinations required to be made under this Section 10the immediately preceding “Additional Payment” paragraph, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm designated by you (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive you within fifteen 15 business days after the receipt of the Date of Termination, if applicable, notice from you 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 effecting the Change in Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 this paragraph and the Executive you thereafter is are required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive your benefit. You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows you are informed in writing of such claim and claim. You shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive you in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive you shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in (a) In the event that payments or benefits made or provided to Executive under this Agreement and under any other plan, program or agreement of the Company, or any of their respective affiliates (the "Aggregate Payment") are or become subject to the contrary notwithstandingExcise Tax, in the event it Company shall pay to Executive an additional amount (the "Additional Payment") such that the net amount retained by Executive with respect to the Aggregate Payment, after deduction of any Excise Tax on the Aggregate Payment and any Federal, state and local income tax and Excise Tax on the Additional Payment (and any interest and penalties thereon), but before deduction for any Federal, state or local income or employment tax withholding on such Aggregate Payment, shall be determined that any payment or distribution by equal to the Company pursuant to Section 6.5 hereof to or for the benefit amount of the Executive Aggregate Payment. (a "Payment"), would b) The determination of whether the Aggregate Payment will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxExcise Tax and, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax")if so, the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under paid to Executive and the time of payment pursuant to this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, 9 shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the CompanyAuditor. All fees and expenses of the Accounting Firm Auditor shall be borne solely by the Company. The initial Gross-Up . (c) For purposes of determining the amount of the Additional Payment, if any, as determined pursuant to this Section 10.2, Executive shall be paid deemed to pay: (i) Federal income taxes at the Executive within five days highest applicable marginal rate of Federal income taxation for the calendar year in which the Additional Payment is to be made, and (ii) Any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Additional Payment is to be made, net of the receipt maximum reduction in Federal incomes taxes which could be obtained from the deduction of such state or local taxes if paid in such year. (d) In the Accounting Firm's determination. If event that the Accounting Firm determines that no Excise Tax is payable subsequently determined by the ExecutiveAuditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder in calculating the Additional Payment made, it Executive shall furnish repay to the Executive with an opinion Company, at the time that failure to report the amount of such reduction in the Excise Tax on is finally determined, the Executive's applicable federal income tax return portion of such prior Additional Payment that would not result have been paid if such Excise Tax had been applied in initially calculating such Additional Payment. (e) In the imposition of a negligence or similar penalty. Any determination event that the Excise Tax is subsequently determined by the Accounting Firm shall Auditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Additional Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code determined at the time of the initial determination by the Accounting Firm hereunderAdditional Payment), 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 Section 10.3 and the Executive thereafter is required to shall make a an additional payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows respect of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalty payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authorityfinally determined. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to benefit provided to, or for the benefit of of, the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 6) (a "“Payment"), ”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then the Executive shall be entitled to receive an additional payment (a "“Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto), employment taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 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 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 Section 10.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on Notwithstanding the foregoing provisions of this Section 10.36(a), if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $25,000 (taking into account income taxes, employment taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Limited Payment Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then the following shall apply: (i) No Gross-Up Payment shall be made to the Executive. (ii) The Payments, in the aggregate, shall be reduced to the Limited Payment Amount, and in that case, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue reduce or forgo any and all administrative appeals, proceedings, hearings and conferences with eliminate the taxing authority in respect of such claim and may, at its sole option, either direct Payments to the Executive by first reducing or eliminating those payments or benefits which are payable in cash and then by reducing or eliminating payments not payable in cash, in each case pro-rata and in reverse order beginning with payments or benefits which are to pay be paid or provided the tax claimed farthest in time from the Determination (as hereinafter defined). The reductions in the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing Executive’s rights and sue for a refund entitlements to any benefits or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest compensation. (iii) If it is established pursuant to a final determination before any administrative tribunal, in of a court of initial jurisdiction or an Internal Revenue Service (the “IRS”) proceeding which has been finally and in one or more appellate courts, as the Company shall determine; provided, howeverconclusively resolved, that if Payments which should have been limited to the Company directs Limited Payment Amount have been made to, or provided for the benefit of, the Executive by the Company, which are in excess of the limitations provided in Section 6(a) (hereinafter referred to pay as an “Excess Payment”), such claim and sue Excess Payment shall be deemed for all purposes to be a refund, the Company shall advance the amount of such paymexx loan to the Executive, Executive made on an interest-free basis, and shall indemnify and hold the date the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of received the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Excess Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as repay the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay Excess Payment to the Company on demand, together with interest on the amount Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after Excess Payment until the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount date of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidrepayment. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company’s obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 10 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive’s termination of employment. 10.2 (b) Subject to the provisions of Section 10.310(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm as may be agreed to by the Company and the Executive (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.210, shall be paid by the Company to the Executive within 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 an 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 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 Internal Revenue Code of 1986, as amended (the “Code”) at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 10(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. The Executive shall notify the Company no later than 10 days after having made such payment of Excise Tax, the Accounting Firm shall provide its calculation of such Underpayment within 15 business days of the receipt of such notice from the Executive, and the Company shall pay the Underpayment within 5 days of the receipt of the Accounting Firm’s determination. 10.3 (c) The Executive shall notify the Company in writing no later than 10 days after making any payment to the United States Treasury that would entitle the Executive to a Gross-Up Payment. In addition, the Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. Notice given by the Executive pursuant to this Section 10(c) shall constitute notice for purposes of Section 10(b) that there has been a Payment. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim;, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.310(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue xxx for a refund or contest the claim in any permissible manner, and xxe the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue xxx for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's ’s control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive’s behalf pursuant to Section 10.310(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's ’s complying with the requirements of Section 10.310(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10.310(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 10, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 Anything in (a) In the event that payments or benefits made or provided to Executive under this Agreement and under any other plan, program or agreement of the Company, or any of their respective affiliates (the “Aggregate Payment”) are or become subject to the contrary notwithstandingExcise Tax, in the event it Company shall pay to Executive an additional amount (the “Additional Payment”) such that the net amount retained by Executive with respect to the Aggregate Payment, after deduction of any Excise Tax on the Aggregate Payment and any Federal, state and local income tax and Excise Tax on the Additional Payment (and any interest and penalties thereon), but before deduction for any Federal, state or local income or employment tax withholding on such Aggregate Payment, shall be determined that any payment or distribution by equal to the Company pursuant to Section 6.5 hereof to or for the benefit amount of the Executive Aggregate Payment. (a "Payment"), would b) The determination of whether the Aggregate Payment will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxExcise Tax and, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax")if so, the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under paid to Executive and the time of payment pursuant to this Section 10, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, 9 shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days of the Date of Termination, if applicable, or such earlier time as is requested by the CompanyAuditor. All fees and expenses of the Accounting Firm Auditor shall be borne solely by the Company. The initial Gross-Up . (c) For purposes of determining the amount of the Additional Payment, if any, as determined pursuant to this Section 10.2, Executive shall be paid deemed to pay: (i) Federal income taxes at the Executive within five days highest applicable marginal rate of Federal income taxation for the calendar year in which the Additional Payment is to be made, and (ii) Any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Additional Payment is to be made, net of the receipt maximum reduction in Federal incomes taxes which could be obtained from the deduction of such state or local taxes if paid in such year. (d) In the Accounting Firm's determination. If event that the Accounting Firm determines that no Excise Tax is payable subsequently determined by the ExecutiveAuditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder in calculating the Additional Payment made, it Executive shall furnish repay to the Executive with an opinion Company, at the time that failure to report the amount of such reduction in the Excise Tax on is finally determined, the Executive's applicable federal income tax return portion of such prior Additional Payment that would not result have been paid if such Excise Tax had been applied in initially calculating such Additional Payment. (e) In the imposition of a negligence or similar penalty. Any determination event that the Excise Tax is subsequently determined by the Accounting Firm shall Auditor or pursuant to any proceeding or negotiations with the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Additional Payment is made (including, but not limited to, by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code determined at the time of the initial determination by the Accounting Firm hereunderAdditional Payment), 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 Section 10.3 and the Executive thereafter is required to shall make a an additional payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows respect of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company excess (plus any interest or such shorter period ending on the date that any payment of taxes penalty payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authorityfinally determined. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement Unless the Compensation Committee of the Board of Directors determines to the contrary notwithstandingcontrary, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive as provided under subsection (a "Payment"b), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive shall will be entitled to receive an additional payment (a "Gross-Up “Reimbursement Payment"”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and 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 Compensation Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject (1) The Professional Services Firm, at Xxxxxxx’x expense, will make an initial determination as to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Reimbursement Payment is required and the amount of such Gross-Up Reimbursement Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which . The Professional Services Firm shall provide its determination, together with detailed supporting calculations both and documentation to the Company Xxxxxxx and the Executive within fifteen business thirty (30) days of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five days of the receipt of the Accounting Firm's determinationTermination Date. If the Accounting Professional Services Firm determines that no Excise Tax is will be payable by Executive with respect to the ExecutiveCompensation Payments, it shall furnish the Executive with an 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 similar penalty. Any The determination by the Accounting Firm shall be binding binding, final and conclusive upon the Company Xxxxxxx and the Executive. As a result of the uncertainty in , subject to the application of Section 4999 paragraph (3) of this subsection. (2) Xxxxxxx shall pay any Reimbursement Payment to Executive within five (5) days of the Code at the time receipt of the initial determination by the Accounting Firm hereunder, it Professional Services Firm’s determination. (3) If a Reimbursement Payment is possible paid that Gross-Up Payments which will should not have been made by the Company paid (an “Excess Payment”), or if a Reimbursement Payment is not paid that should have been made paid ("an “Underpayment"”), consistent the Excess Payment or Underpayment shall be corrected as provided in this paragraph (3). An Underpayment shall be deemed to have occurred (i) upon notice to Executive from any governmental taxing authority that Executive’s tax liability for any taxable year may be increased by imposition of the Excise Tax on a Compensation Payment with the calculations required respect to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 and the Executive thereafter is required which Xxxxxxx has failed to make a payment sufficient Reimbursement Payment; (ii) upon a determination by a court; (iii) by reason of any Excise Taxdetermination by Xxxxxxx (which shall include the position taken by Xxxxxxx, together with its consolidated group, on its federal income tax return); or (iv) upon the Accounting Firm resolution of a dispute to Executive’s satisfaction. If an Underpayment occurs, Executive shall determine promptly notify Xxxxxxx, and Xxxxxxx shall pay to Executive promptly, at least five days prior to due date of the requested tax payment, an additional Reimbursement Payment equal to the amount of the Underpayment that has occurred and plus any such Underpayment interest, penalties, additional taxes or similar items imposed on the Underpayment. An Excess Payment shall be promptly paid deemed to have occurred when Executive has received from the applicable government taxing authority a refund of taxes or other reduction in Executive’s tax liability by the Company to or for the benefit reason of the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim Excise Payment and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: upon either (i) give the Company any information reasonably requested date a determination is made by, or an agreement is entered into with, the applicable governmental taxing authority that finally and conclusively binds Executive and such taxing authority, or in the event that a claim is brought before a court of competent jurisdiction, the date upon which a final determination has been made by such court and either all appeals have been taken and finally resolved or the Company relating to such claim; time for all appeals has expired or (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amountExecutive’s applicable tax return has expired. FurthermoreIn that event, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company Xxxxxxx the amount of such refund the Excess Payment (together with any interest paid or credited thereon after taxes applicable thereto). If. (4) In the event that, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior according to the expiration of 30 days after such Professional Services Firm’s determination, then such advance an Excise Tax will be imposed on any Compensation Payment, Xxxxxxx shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, pay to the extent thereofapplicable government taxing authorities, as Excise Tax withholding, the amount of Gross-Up Payment required to be paidthe Excise Tax that Xxxxxxx has actually withheld from the Compensation Payments. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive then you shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive you of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Executive retains Code, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company will attempt to minimize any Excise TaxNotwithstanding the foregoing provisions of this paragraph, including accelerating payments if it shall be determined that you are entitled to the Executive Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if possibleapplicable, however if the Payment results in an Excise Tax and shall be made by reducing the Payment by up to 10% eliminates the Excise Tax cash payment first and then the Executive agrees Medical Benefits. For purposes of reducing the Payments to reduce the Payment Safe Harbor Amount, only amounts payable under this Agreement (by up to 10%and no other Payments) until it does not trigger an Excise Taxshall be reduced. If any Excise Tax the reduction of the amount payable under this Agreement would still exist after not result in a reduction of the aforementioned reduction in Parachute Value of all Payments to the Payment then there Safe Harbor Amount, no amounts payable under the Agreement shall be no reduction in the Payment. 10.2 reduced pursuant to this Agreement. The Company’s obligation to make Gross-Up Payments under this Agreement shall not be conditioned upon your termination of employment. Subject to the provisions of Section 10.3the following paragraph, all determinations required to be made under this Section 10“Additional Payment” section, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm designated by you (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive you within fifteen 15 business days of the Date receipt of Termination, if applicable, notice from you 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 effecting the Change in Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 this paragraph and the Executive you thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine de- Xxx X. Xxxxxxx BGC Partners, LLC Change in Control Agreement termine 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 the Executive. 10.3 The Executive your benefit. You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows you are informed in writing of such claim and claim. You shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive you in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive you shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject sub- Xxxxxxx X. Xxxxxx BGC Partners, LLC Change in Control Agreement ject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive then you shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive you of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Executive retains Code, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company will attempt to minimize any Excise TaxNotwithstanding the foregoing provisions of this paragraph, including accelerating payments if it shall be determined that you are entitled to the Executive Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if possibleapplicable, however if the Payment results in an Excise Tax and shall be made by reducing the Payment by up to 10% eliminates the Excise Tax cash payment first and then the Executive agrees Medical Benefits. For purposes of reducing the Payments to reduce the Payment Safe Harbor Amount, only amounts payable under this Agreement (by up to 10%and no other Payments) until it does not trigger an Excise Taxshall be reduced. If any Excise Tax the reduction of the amount payable under this Agreement would still exist after not result in a reduction of the aforementioned reduction in Parachute Value of all Payments to the Payment then there Safe Harbor Amount, no amounts payable under the Agreement shall be no reduction in the Payment. 10.2 reduced pursuant to this Agreement. The Company’s obligation to make Gross-Up Payments under this Agreement shall not be conditioned upon your termination of employment. Subject to the provisions of Section 10.3the following paragraph, all determinations required to be made under this Section 10“Additional Payment” section, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm designated by you (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive you within fifteen 15 business days of the Date receipt of Termination, if applicable, notice from you 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 effecting the Change in Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 this paragraph and the Executive you thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive your benefit. You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows you are informed in writing of such claim and claim. You shall apprise the Company of the nature of Xxxxxxx X. Xxxxxx BGC Partners, LLC Change in Control Agreement such claim and the date on which such claim is requested to be paid. The Executive You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive you in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive you shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company’s obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 26 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive’s termination of employment. 10.2 (b) Subject to the provisions of Section 10.326(c), all determinations required to be made under this Section 1026, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable nationally a nationally-recognized accounting firm appointed by the Company prior to a Change of Control (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.226, shall be paid by the Company to the Executive within five 5 days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable , but in all events by the Executive, it shall furnish last day of the calendar year following the calendar year in which the Executive with an opinion that failure to report remits the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penaltyrelated taxes. Any determination de- termination 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 26(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive; but in no event later than the last day of the calendar year following the calendar year in which the Executive remits the related taxes. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.326(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue sxx for a refund or contest the claim in any permissible manner, and xxe the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue sxx for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's ’s control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In all events, any reimbursement of the Executive shall be made no later than the last day of the calendar year following the calendar year in which the taxes that are subject to audit or litigation are remitted to the taxing authority or, where as a result of such audit or litigation no taxes are remitted, the last day of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive’s behalf pursuant to Section 10.326(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's ’s complying with the requirements of Section 10.326(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10.326(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 26, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a the "Gross-Up Payment") in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company's obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 10 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive's termination of employment. 10.2 (b) Subject to the provisions of Section 10.310(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst Deloitte & Young LLP Touche LLP, or another mutually agreeable such other nationally recognized certified public accounting firm as may be designated by the Executive (the "Accounting Firm") which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.210, shall be paid by the Company to the Executive within 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 an 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 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made (the "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 10(c) and the Executive thereafter is [Morgan Stanley] [Logo Omitted] required to make a payment of any Excise TaxExxxxx Txx, the xxx Accounting Firm shall 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 the Executive. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim;, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.310(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs [Morgan Stanley] [Logo Omitted] the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall xxx Xxmxxxx xxall indemnify and hold the Executive harmlessxxrmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive's behalf pursuant to Section 10.310(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.310(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive's behalf pursuant to Section 10.310(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 10, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 Anything in this Agreement Subject to Executive's compliance with ------------------ his obligations under Section 1 hereof and subject to the contrary notwithstandingprovisions of Section 12(f)(ii) of the Employment Agreement, in the event it shall be determined that any payment or distribution by the Company shall pay the Executive an aggregate amount equal to the excess of (1) the lump sum equivalent (determined pursuant to Section 6.5 hereof to or for the benefit 6(d) of the Executive (a "Payment"), would be subject to the excise tax imposed by Section 4999 Employment Agreement) of the Code or any interest or penalties are incurred by Retirement Benefit which would have been payable under Section 6(b) of the Employment Agreement (calculated as of the end of the Transition Period as if Executive with respect were entitled to such excise tax Retirement Benefit) over (2) the lump sum Retirement Benefit payable pursuant to Section 3(a)(4) hereof (such excise tax, together with any such interest and penalties, are excess being hereinafter collectively referred to as the "Excise TaxPayment"). An estimate of the Payment as of March 31, 2000 (based upon certain assumptions as to discount rates) is attached hereto as Exhibit C. The actual amount of the Payment shall be determined by Mercer, at the Company's expense, in accordance with the methodology utilized in said Exhibit C, except that, in determining present values, Mercer shall utilize the discount rate in effect at January 31, 2000 (or such earlier date on which the Transition Period ends), as set forth in the footnote to said Exhibit C. Such calculation shall be performed by Mercer within ten days after the end of the Transition Period and shall be provided (with backup) to the Company and the Executive. So long as the appropriate discount rate has been utilized, such computation by Mercer shall be binding and conclusive on the parties hereto, except for mathematical errors. The portion of the Payment in excess of one million dollars ($1,000,000) shall be paid to Executive in a lump sum within five days after delivery of Xxxxxx'x final computation of the Payment (but in no event prior to the effective date of the Release executed by the Executive, as contemplated by Section 5 hereof). The remaining one million dollars ($1,000,000), together with interest thereon from the end of the Transition Period to the date of payment at the rate announced by Bank of America as its "prime rate" as in effect at January 31, 2000 (or such earlier date on which the Transition Period ends) (the "Prime Rate") (such one million dollars plus interest being referred to as the "Holdback Amount"), shall be paid to Executive, as soon as practicable following the end of the Post-Transition Period, unless a two-person committee (the "Committee") of Company directors, consisting of Messrs. Xxxxxx Xxxx and Xxxxxxx Xxxxxx (or, in the event of the death or incapacity or resignation of either or both of such individuals, another Company director or directors acceptable to the Executive), shall have theretofore determined in good faith that the Executive shall be entitled failed to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive perform his obligations under Section 1 of all taxes (including any interest this Agreement or penalties imposed materially failed to comply with respect to such taxes), including, without limitation, any income taxes and 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 Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required and 12(c)(i) of the amount Employment Agreement. Any determination of such Gross-Up Payment, nonpayment by the Committee shall be made delivered in writing by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both Committee to the Company and the Executive within fifteen business (15) days after such determination is made (but in no event later than fifteen (15) days after the end of the Date of TerminationPost-Transition Period) and shall specify with detail the reasons therefor. If the Executive challenges the Committee's determination, if applicable, or such earlier time as is requested by the Company. All fees and expenses resolution of the Accounting Firm dispute shall be borne solely by arbitration in accordance with Section 13(g) of the CompanyEmployment Agreement. The initial GrossIn the event that, prior to the end of the Post-Up PaymentTransition Period, if any, as determined pursuant the Company (to this Section 10.2, which actions of any director shall be paid attributed for purposes of Section 12(c)(ii) of the Employment Agreement, without otherwise limiting the meaning of such Section) materially breaches its obligations under Section 12(c)(ii) of the Employment Agreement, then the Company shall immediately pay the Holdback Amount to the Executive within five days and such amount shall no longer be subject to any further risk of the receipt of the Accounting Firm's determinationforfeiture. If the Accounting Firm determines that no Excise Tax is payable Any assertion by the Executive, it Executive of any such breach by the Company shall furnish be delivered in writing by the Executive with an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result Committee within fifteen (15) days after Executive has actual knowledge of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm 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 event or events giving rise to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim assertion and shall apprise specify in detail the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due)basis therefor. If the Company notifies challenges Executive's assertion as provided in the prior sentence, resolution of the dispute shall be by arbitration in accordance with Section 13(g) of the Employment Agreement, provided that, if Executive is successful in writing prior to the expiration of such period that it desires to contest such claimarbitration, the Executive shall: (i) give Holdback Amount shall not be subject to forfeiture after the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result date of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control material breach of its obligations under Section 12(c)(ii) of Employment Agreement and the Holdback Amount shall become payable only after determination of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder arbitrator (or, if earlier and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled otherwise qualifies to receive any refund with respect to such claimthe Holdback Amount, promptly following the Executive shall (subject to end of the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable theretoPost- Transition Period). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding, in the event it shall be determined that any payment or distribution received by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "whether pursuant to the terms of the Separation Agreement or any other plan, arrangement or agreement (all such payments and benefits, excluding the Gross-Up Payment", being hereinafter referred to as the “Total Payments”)) will be subject to any excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”), would the Company shall pay to the Executive an additional amount (the “Gross Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Total Payments. Notwithstanding the foregoing, the amount of the Gross-Up Payment together with the aggregate parachute payments (as such term is defined below) payable to Executive shall not exceed $3.5 million in the aggregate, based on the after tax cost to the Company of providing such benefits. For purposes of determining whether any of the Total Payments will be subject to the excise tax imposed by Excise Tax and the amount of such Excise Tax, (a) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Section 4999 280G(b)(2) of the Code) unless the Company determines in good faith that such payments or benefits (in whole or in part) do not constitute parachute payments, (b) all “excess parachute payments” within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless the Company determines in good faith that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (c) the value of any noncash benefits or any interest deferred payment or penalties are incurred benefit shall be determined by the Executive Company and its advisors in accordance with respect to such excise tax the principles of Sections 280G(d)(3) and (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as 4) of the "Excise Tax"), Code. For purposes of determining the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of termination of the Executive’s employment (or if the Executive’s employment is not terminated, then the date on which the Gross-Up Payment is calculated for purposes of this Section 8), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed upon on the Payments. The Company will attempt to minimize any Excise Tax, including accelerating payments to the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the Payment. 10.2 Subject to the provisions of Section 10.3, all determinations required to be made under this Section 10, including whether a Gross-Up Payment is required being repaid by the Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such Gross-Up Payment, shall be made by Ernst & Young LLP or another mutually agreeable nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days repayment at 120% of the Date of Termination, if applicable, or such earlier time as is requested by the Company. All fees and expenses rate provided in Section 1274(b)(2)(B) of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 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 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 hereunderCode. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to Section 10.3 and exceed the Executive thereafter is required to make a payment amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. 10.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than twenty business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund penalties or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of additions payable by the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) within five (5) business days following the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofTotal Payments. Except as modified hereby, the amount of Gross-Up Payment required to be paidAgreement shall remain in full force and effect. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject sub- Xxxxxx X. Xxxxxxx BGC Partners, Inc. Change in Control Agreement ject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive then you shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive you of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Executive retains Code, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company will attempt to minimize any Excise TaxNotwithstanding the foregoing provisions of this paragraph, including accelerating payments if it shall be determined that you are entitled to the Executive Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if possibleapplicable, however if the Payment results in an Excise Tax and shall be made by reducing the Payment by up to 10% eliminates the Excise Tax cash payment first and then the Executive agrees Medical Benefits. For purposes of reducing the Payments to reduce the Payment Safe Harbor Amount, only amounts payable under this Agreement (by up to 10%and no other Payments) until it does not trigger an Excise Taxshall be reduced. If any Excise Tax the reduction of the amount payable under this Agreement would still exist after not result in a reduction of the aforementioned reduction in Parachute Value of all Payments to the Payment then there Safe Harbor Amount, no amounts payable under the Agreement shall be no reduction in the Payment. 10.2 reduced pursuant to this Agreement. The Company’s obligation to make Gross-Up Payments under this Agreement shall not be conditioned upon your termination of employment. Subject to the provisions of Section 10.3the following paragraph, all determinations required to be made under this Section 10“Additional Payment” section, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm designated by you (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive you within fifteen 15 business days of the Date receipt of Termination, if applicable, notice from you 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 effecting the Change in Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 this paragraph and the Executive you thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive your benefit. You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows you are informed in writing of such claim and claim. You shall apprise the Company of the nature of Xxxxxx X. Xxxxxxx BGC Partners, Inc. Change in Control Agreement such claim and the date on which such claim is requested to be paid. The Executive You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive you in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive you shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a the "Gross-Up Payment") in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company's obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 26 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive's termination of employment. 10.2 (b) Subject to the provisions of Section 10.326(c), all determinations required to be made under this Section 1026, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable nationally a nationally-recognized accounting firm appointed by the Company prior to a Change of Control (the "Accounting Firm") which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.226, shall be paid by the Company to the Executive within five 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable , but in all events by the Executive, it shall furnish March 15 following the Executive with an opinion that failure calendar year in which the event giving rise to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penaltypayment occurs. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made (the "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 26(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim;, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-after- tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.326(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible mannerxxnner, and xxe the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the txx Executive harmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive's behalf pursuant to Section 10.326(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.326(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive's behalf pursuant to Section 10.326(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 26, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 Anything in this Agreement If a Change of Control occurs within three (3) years of the Effective Date (the “Sunset Period”) and the Executive’s employment is terminated during the Employment Period that commences on the occurrence of that Change of Control under circumstances that entitle the Executive to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company receive a Termination Payment pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax")11, the Executive shall be entitled to receive an additional payment (a "the “Gross-Up Payment"” provided by this Section 26 if it is determined that any Payment would be subject to the Excise Tax. (a) in an The Gross-Up Payment shall equal the amount such that necessary to assure that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company’s obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 26 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive’s termination of employment. 10.2 (b) Subject to the remaining provisions of this Section 10.326, all determinations required to be made under this Section 1026, including whether and when a Gross-Up Payment is required and required, the amount of such the Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made by Ernst & Young LLP or another mutually agreeable nationally a nationally-recognized accounting firm appointed by the Company prior to a Change of Control (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.226, shall be paid by the Company to the Executive within five 5 days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable , but in all events by the Executive, it shall furnish last day of the calendar year following the calendar year in which the Executive with an opinion that failure to report remits the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penaltyrelated taxes. Any determination by the Accounting Firm relating to the Gross-Up Payment 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 hereunderCode, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 26(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive; but in no event later than the last day of the calendar year following the calendar year in which the Executive remits the related taxes. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.326(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue xxx for a refund or contest the claim in any permissible manner, and xxe the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue xxx for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's ’s control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In all events, any reimbursement of the Executive shall be made no later than the last day of the calendar year following the calendar year in which the taxes that are subject to audit or litigation are remitted to the taxing authority or, where as a result of such audit or litigation no taxes are remitted, the last day of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive’s behalf pursuant to Section 10.326(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's ’s complying with the requirements of this Section 10.326) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to this Section 10.326, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 26, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), the Executive then you shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive you of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Executive retains Code, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company will attempt to minimize any Excise TaxNotwithstanding the foregoing provisions of this paragraph, including accelerating payments if it shall be determined that you are entitled to the Executive Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall be made to you, and the Payments shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the Payments, if possibleapplicable, however if the Payment results in an Excise Tax and shall be made by reducing the Payment by up to 10% eliminates the Excise Tax cash payment first and then the Executive agrees Medical Benefits. For purposes of reducing the Payments to reduce the Payment Safe Harbor Amount, only amounts payable under this Agreement (by up to 10%and no other Payments) until it does not trigger an Excise Taxshall be reduced. If any Excise Tax the reduction of the Payments would still exist after not result in a reduction of the aforementioned reduction in Parachute Value of all Payments to the Payment then there Safe Harbor Amount, no Payments shall be no reduction in the Payment. 10.2 reduced pursuant to this Agreement. The Company’s obligation to make Gross-Up Payments under this Agreement shall not be conditioned upon your termination of employment. Subject to the provisions of Section 10.3the following paragraphs, all determinations required to be made under this Section 10the immediately preceding “Additional Payment” paragraph, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm designated by you (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive you within fifteen 15 business days after the receipt of the Date of Termination, if applicable, notice from you 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 effecting the Change in Control, you may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Gross-Up Payment, if any, as determined pursuant to this Section 10.2, shall be paid to the Executive within five 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 an 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 similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executiveyou. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 this paragraph and the Executive you thereafter is are required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 The Executive your benefit. Xxxxxxx X. Xxxxxx You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows you are informed in writing of such claim and claim. You shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive You shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive you in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive you shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.3) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10.3, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The Company may in its sole discretion make any payments required by this Agreement to the Executive before the time it is otherwise required to be paid pursuant to this Agreement and the Executive may not claim that such payment is also required on the date otherwise due under this Agreement.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "the “Gross-Up Payment"”) in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company’s obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 26 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive’s termination of employment. 10.2 (b) Subject to the provisions of Section 10.326(c), all determinations required to be made under this Section 1026, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable nationally a nationally-recognized accounting firm appointed by the Company prior to a Change of Control (the "“Accounting Firm") which ”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.226, shall be paid by the Company to the Executive within five 5 days of the receipt of the Accounting Firm's ’s determination. If the Accounting Firm determines that no Excise Tax is payable , but in all events by the Executive, it shall furnish last day of the calendar year following the calendar year in which the Executive with an opinion that failure to report remits the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a negligence or similar penaltyrelated taxes. 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 hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made ("the “Underpayment"”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 26(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive; but in no event later than the last day of the calendar year following the calendar year in which the Executive remits the related taxes. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.326(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue sxx for a refund or contest the claim in any permissible manner, and xxe the Executive agrees to prosecute such contest to a determination before any administrative administra- tive tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue sxx for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's ’s control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In all events, any reimbursement of the Executive shall be made no later than the last day of the calendar year following the calendar year in which the taxes that are subject to audit or litigation are remitted to the taxing authority or, where as a result of such audit or litigation no taxes are remitted, the last day of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive’s behalf pursuant to Section 10.326(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's ’s complying with the requirements of Section 10.326(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10.326(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 26, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.

Additional Payment. 10.1 (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment or distribution by the Company pursuant to Section 6.5 hereof to or for the benefit of the Executive (a "Payment"), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a the "Gross-Up Payment") in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and 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 Payments. The Company will attempt Company's obligation to minimize any Excise Tax, including accelerating payments to make Gross-Up Payments under this Section 10 shall not be conditioned upon the Executive if possible, however if the Payment results in an Excise Tax and reducing the Payment by up to 10% eliminates the Excise Tax then the Executive agrees to reduce the Payment (by up to 10%) until it does not trigger an Excise Tax. If any Excise Tax would still exist after the aforementioned reduction in the Payment then there shall be no reduction in the PaymentExecutive's termination of employment. 10.2 (b) Subject to the provisions of Section 10.310(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and required, the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young LLP or another mutually agreeable a nationally recognized certified public accounting firm as may be agreed to by the Company and the Executive (the "Accounting Firm") which ). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within fifteen 15 business days of the Date receipt of Termination, if applicable, notice 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 effecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. The initial Any Gross-Up Payment, if any, as determined pursuant to this Section 10.210, shall be paid by the Company to the Executive within 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 an 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 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 Internal Revenue Code of 1986, as amended (the "Code") at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which that will not have been made by the Company should have been made (the "Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10.3 10(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall 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 the Executive. 10.3 (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable practicable, but not no later than twenty 10 business days after the Executive knows is informed in writing of such claim and claim. The Executive shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it the Company desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim;, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company;, (iii) cooperate with the Company in good faith in order effectively to contest such claim; , and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, tax (including interest and penalties with respect thereto, penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.310(c), the Company shall control all proceedings taken in connection with such contest contest, and, at its sole optiondiscretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole optiondiscretion, either pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and xxe Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that that, if the Company pays such claim and directs the Executive to pay such claim and sue for a refund, the Company shall advance the amount of such paymexx to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmlessxxrmless, on an after-tax basis, from any Excise Tax or income tax, tax (including interest or penalties with respect thereto, penalties) imposed with respect to such advance payment or with respect to any imputed income in connection with respect to such advancepayment; and further provided provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 10.4 (d) If, after the receipt by the Executive of an amount advanced a Gross-Up Payment or payment by the Company of an amount on the Executive's behalf pursuant to Section 10.310(c), the Executive becomes entitled to receive any refund with respect to the Excise Tax to which such Gross-Up Payment relates or with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 10.310(c), if applicable) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt payment by the Executive Company of an amount advanced by on the Company Executive's behalf pursuant to Section 10.310(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 10.5 The (e) Notwithstanding any other provision of this Section 10, the Company may may, in its sole discretion make any payments required by this Agreement discretion, withhold and pay over to the Executive before Internal Revenue Service or any other applicable taxing authority, for the time it is otherwise required to be paid pursuant to this Agreement benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive may not claim that hereby consents to such payment is also required on the date otherwise due under this Agreementwithholding.