Common use of Certain Additional Payments by the Company Clause in Contracts

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will be determined that any payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that 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 both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 8 (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a8(a), if it is 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 both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c8(c), all determinations required to be made under this Section 108, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Ernst & Young, L.L.P., or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”) "), which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 108, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c8(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c8(a) or 8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c8(c)) 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(c8(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything Notwithstanding any provision in this Agreement to the contrary notwithstanding and except as set forth below, in the event if it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under pursuant to this Section 10Paragraph 7) (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 will 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, including 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. Notwithstanding the foregoing provisions of this Section 10(aParagraph 7(a), if it is 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 50,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(cParagraph 7(c), all determinations required to be made under this Section 10Paragraph 7, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx PricewaterhouseCoopers LLP or (the "Accounting Firm") or, as provided below, such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) Executive, which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of after the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In If the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or the Executive shall have the option, in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditorExecutive's sole discretion, Executive will to appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the "Accounting Firm Firm" hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10Paragraph 7, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event 's determination. If the Accounting Firm determines that no Excise Tax is payable by the end of Executive’s taxable year next following , it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s taxable year 's applicable federal income tax return would not result in which the related taxes are remittedimposition of a negligence or similar penalty. Any determination by the Accounting Firm will 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 (“"Underpayment”"), consistent with the calculations required to be made hereunder. In the event that If the Company exhausts its remedies pursuant to Section 10(cParagraph 7(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will shall notify the Company in writing of any claim by the Internal Revenue Service of the United States (the "Internal Revenue Service") that, if successful, would require the payment by the Company of the Gross-Up Payment (or an additional amount of Gross-Up Payment) in the event the Internal Revenue Service seeks higher payment. Such notification will shall be given as soon as practicable but no later than ten 10 business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests request in writing from time to time, including, without limitation, accepting including the acceptance of 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 and/or Noble-Cayman to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(cParagraph 7(c), the Company will 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 xxx sue for a refund or contest the claim in any permissible manner, and xxx Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction jurisdiction, and in one or more appellate courts, as the Company will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx sue for a refund, the Company will shall advance the amount of such payment to paymenx xo the Executive, on an interest-free basis basis, and will 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(cParagraph 7(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(cParagraph 7(c)) 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(cParagraph 7(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 8 (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a8(a), if it is 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 both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c8(c), all determinations required to be made under this Section 108, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Ernst & Young, L.L.P., or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”) "), which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 108, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c8(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c8(a) or 8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c8(c)) 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(c8(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 8) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a8(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c8(c), all determinations required to be made under this Section 108, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP KPMG or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 108, will shall be paid by the Company to the Executive within five days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c8(c), the Company will shall control all proceedings taken in connection with such contest 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 Executive to pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that that, if the Company directs Executive to pay pays such claim and directs the Executive to xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will 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 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 will shall be limited to issues with respect to which a the Gross-Up Payment would be payable hereunder hereunder, and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of a payment by the Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10(c8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c8(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after payment by the receipt by Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10(c8(c), a determination is made that the Executive is 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 will be forgiven and will not be required to be repaid and the amount of such advance will payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any benefit, payment or distribution by the Company to or for the benefit of 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 10) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 then: Executive will shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, The Executive may select the order of reduction shall Payments to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basislimited or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public the Company's regular independent accounting firm reasonably acceptable to at the expense of the Company as may be designated by Executive or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remittedcalculations. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, on an interest-free basis and will shall indemnify and hold 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by by, or benefit from, the Company or any of its Affiliates to or for the benefit of Executive (the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (any such payments, but determined without regard distributions or benefits being individually referred to any additional payments required under this Section 10) (herein as a “Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) ), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and thereon, any penalties, are hereinafter additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then the Executive will shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxesas defined in Section 11(k), 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 such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions The purpose of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments 11 and the Gross-Up Payment, intent of the parties to this Agreement is to place the Executive in the same economic position the Executive would not receive a net after-tax benefit of at least $25,000 (taking into account both income taxes and any have been in had no Excise Tax) as compared Tax been imposed with respect to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c11(c) through (i), all determinations any determination (individually, a “Determination”) required to be made under this Section 1011(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and Payment, shall initially be made, at the assumptions to be utilized in arriving at such determinationCompany’s expense, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably nationally recognized tax counsel mutually acceptable to the Company as may be designated by and the Executive (the “Accounting FirmTax Counsel”) which will ). Tax Counsel shall provide detailed supporting calculations legal authorities, calculations, and documentation both to the Company and the Executive within 15 business days of the receipt termination of notice from Executive that there has been a Paymentthe Executive’s employment, if applicable, or such earlier other time or times as is reasonably requested by the CompanyCompany or the Executive. In If Tax Counsel makes the event initial Determination that no Excise Tax is payable by the accounting firm is serving as accountant Executive with respect to a Payment or auditor for Payments, it shall furnish the individual, entity or group effecting Executive with an opinion reasonably acceptable to the Change in Control, or in the event Executive that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm no Excise Tax will be borne solely by imposed with respect to any such Payment or Payments. The Executive shall have the Companyright to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. Any The Gross-Up Payment, if any, as determined pursuant to this Section 10such Determination shall, will at the Company’s expense, be paid by the Company to the Executive within five business days of the Executive’s receipt of the Accounting Firm’s determination but must be paid such Determination. The existence of a Dispute shall not in any event by the end of Executive’s taxable year next following way affect the Executive’s taxable year right to receive the Gross-Up Payment in which the related taxes are remittedaccordance with such Determination. Any determination by the Accounting Firm will If there is no Dispute, such Determination shall be binding binding, final and conclusive upon the Company and the Executive, subject in all respects, however, to the provisions of Section 11(c) through (i) below. As a result of the uncertainty in the application of Section Sections 4999 and 280G of the Code at the time of the initial determination by the Accounting Firm hereunderCode, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by the Company should have been made (“Underpayment”), consistent with and if upon any reasonable written request from the calculations required Executive or the Company to be made hereunder. In Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at the event Company’s expense, thereafter determines that the Company exhausts its remedies pursuant to Section 10(c) and Executive thereafter is required to make a payment of any Excise Tax or any additional Excise Tax, as the Accounting Firm will case may be, Tax Counsel shall, at the Company’s expense, determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Company shall defend, hold harmless, and indemnify the Executive will notify on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of the Company Executive resulting from any Final Determination (as defined in writing of Section 11(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by the Internal Revenue Service thatExecutive against the Company under this Section 11 (“Claim”), if successfulincluding, would require but not limited to, a claim for indemnification of the payment Executive by the Company of under Section 11(c), then such party shall promptly notify the Gross-Up Payment. Such notification will be given as soon as practicable but no later than ten business days after Executive is informed other party hereto in writing of such claim and apprises Claim (“Tax Claim Notice”). (e) If a Claim is asserted against the Company of Executive (“Executive Claim”), the nature of such claim and the date on which such claim is requested Executive shall take or cause to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take taken such action in connection with contesting such claim Executive Claim as the Company shall reasonably requests request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney including the retention of counsel and experts as are reasonably selected designated by the Company,Company (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that the Company shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (iiii) cooperate with within 30 calendar days after the Company in good faith in order effectively to contest such claimreceives or delivers, and (iv) permit as the Company to participate in any proceedings case may be, the Tax Claim Notice relating to such claim; providedExecutive Claim (or such earlier date that any payment of the taxes claimed is due from the Executive, however, that but in no event sooner than five calendar days after the Company will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with receives or delivers such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(cClaim Notice), the Company will control all proceedings taken shall have notified the Executive in connection with such contest andwriting (“Election Notice”) that the Company does not dispute its obligations (including, at but not limited to, its sole option, may pursue or forgo any indemnity obligations) under this Agreement and all administrative appeals, proceedings, hearings and conferences with that the taxing authority in respect of such claim and may, at its sole option, either direct Executive Company elects to pay the tax claimed and xxx for a refund or contest the claim in any permissible mannercontest, and to control the defense or prosecution of, such Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction Claim at the Company’s sole risk and in one or more appellate courts, as sole cost and expense; and (ii) the Company will determine; provided, however, that if shall have advanced to the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis basis, the total amount of the tax claimed in order for the Executive, at the Company’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 11(g), sxx for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and will agreed by the parties hereto that the Company shall only be entitled to sxx for a refund and the Company shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold the Executive harmless, on an aftera fully grossed-up 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 (iii) the Company shall reimburse the Executive for any and further provided all costs and expenses resulting from any such request by the Company and shall indemnify and hold the Executive harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 11(e) hereof, the Company shall have the right to defend or prosecute, at the sole cost, expense and risk of the Company, such Executive Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by the Company to a Final Determination; provided, however, that (i) the Company shall not, without the Executive’s prior written consent, enter into any compromise or settlement of such Executive Claim that would adversely affect the Executive, (ii) any request from the Company to the Executive regarding any extension of the statute of limitations relating to payment assessment, payment, or collection of taxes for the taxable year of the Executive with respect to which such the contested issues involved in, and amount is claimed to be due of, the Executive Claim relate is limited solely to such contested issues and amount. Furthermore, and (iii) the Company’s control of the any contest will or proceeding shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder the Executive Claim and the Executive will shall be entitled to settle or contest, as the case may bein his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. All payments So long as the Company is diligently defending or prosecuting such Executive Claim, the Executive shall provide or cause to be made hereunder must be made provided to the Company any information reasonably requested by the end Company that relates to such Executive Claim, and shall otherwise cooperate with the Company and its representatives in good faith in order to contest effectively such Executive Claim. The Company shall keep the Executive informed of all developments and events relating to any such Executive Claim (including, without limitation, providing to the Executive copies of all written materials pertaining to any such Executive Claim), and the Executive or his authorized representatives shall be entitled, at the Executive’s taxable year next following Executive’s taxable year expense, to participate in which the taxes are remitted orall conferences, if no taxes are remitted, the taxable year in which the matter is resolved, meetings and all reimbursements proceedings relating to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurredany such Executive Claim. (dg) If, after actual receipt by the Executive of an amount of a tax claimed (pursuant to an Executive Claim) that has been advanced by the Company pursuant to Section 11(e)(ii) hereof, the extent of the liability of the Company hereunder with respect to such tax claimed has been established by a Final Determination, the Executive shall promptly pay or cause to be paid to the Company any refund actually received by, or actually credited to, the Executive with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by the Company to the Executive, whether under the provisions of this Agreement or otherwise. If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c11(e)(ii), a determination is made by the Internal Revenue Service or other appropriate taxing authority that the Executive is shall not be entitled to any refund with respect to such claim tax claimed 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of any Gross-Up Payment Payments and other payments required to be paidpaid hereunder. (h) With respect to any Executive Claim, if the Company fails to deliver an Election Notice to the Executive within the period provided in Section 11(e)(i) hereof or, after delivery of such Election Notice, the Company fails to comply with the provisions of Section 11(e)(ii) and (iii) and (f) hereof, then the Executive shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of the Company, such Executive Claim. The Executive shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by the Executive, the Company shall cooperate, and shall cause its Affiliates to cooperate, in good faith with the Executive and his authorized representatives in order to contest effectively such Executive Claim. The Company may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Executive Claim controlled by the Executive pursuant to this Section 11(h) and shall bear its own costs and expenses with respect thereto. In the case of any Executive Claim that is defended or prosecuted by the Executive, the Executive shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from the Company with respect to costs and expenses incurred by the Executive in connection with such defense or prosecution. (i) In the case of any Executive Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Section 11(i), the Company shall pay, on a fully grossed-up after tax basis, to the Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim that have not theretofore been paid by the Company to the Executive, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by the Company to the Executive, within ten calendar days after such Final Determination. In the case of any Executive Claim not covered by the preceding sentence, the Company shall pay, on a fully grossed-up after tax basis, to the Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim at least ten calendar days before the date payment of such taxes is due from the Executive, except where payment of such taxes is sooner required under the provisions of this Section 11(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 11(i) shall be made within the time and in the manner otherwise provided in this Section 11(i). (j) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other order by a court or other tribunal with appropriate jurisdiction, which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement under Section 7121 of the Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any final disposition by reason of the expiration of all applicable statutes of limitations.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is shall be determined that the Executive is entitled to a Gross-Up Payment, but that 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 10,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP an independent certified public accounting firm retained by the Company, which firm may be the Company's independent auditors, or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Controlof Control , or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remittedfirm's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested required to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo forego 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 xxx for a refund or to contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any benefit, payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 then: Executive will shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, Executive may select the order of reduction shall Payments to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basislimited or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public the Company’s regular independent accounting firm reasonably acceptable to at the expense of the Company as may be designated by Executive or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remittedcalculations. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, on an interest-free basis and will shall indemnify and hold 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will shall (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Deloitte & Touche LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall-be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that that- the Executive is 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 will shall-be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of 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 107) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by 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 Executive will shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a7(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 both income taxes and any Excise Tax) as compared to which is at least ten percent (10%) greater than the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that is one dollar less than the receipt of Payments smallest amount that would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c7(c), all determinations required to be made under this Section 107, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified the Company’s public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 107, will shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that failure to report the end of Excise Tax on Executive’s taxable year next following applicable federal income tax return would not result in the Executive’s taxable year in which the related taxes are remittedimposition of a negligence or similar penalty. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c7(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten 10 business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will shall not pay such claim prior to the expiration of the 30-day period following the date on which it 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of on the foregoing provisions of this Section 10(c7(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, howeverprovided further, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, Executive on an interest-free basis and will shall indemnify and hold 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 further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c7(c), Executive becomes entitled to receive receive, and receives, any refund with respect to such claim, Executive will shall (subject to the Company’s complying with the requirements of Section 10(c7(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c7(c), a determination is made that Executive is shall not be entitled to any refund with respect to such claim and the Company does not notify 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything Notwithstanding any provision in this Agreement to the contrary notwithstanding and except as set forth below, in the event if it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under pursuant to this Section 10Paragraph 7) (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 will 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, including 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. Notwithstanding the foregoing provisions of this Section 10(aParagraph 7(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(cParagraph 7(c), all determinations required to be made under this Section 10Paragraph 7, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) or, as provided below, such other certified public accounting firm as may be designated by the Executive, which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of after the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In If the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or the Executive shall have the option, in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firmExecutive’s status as the Company’s independent auditorsole discretion, Executive will to appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the “Accounting Firm Firm” hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10Paragraph 7, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event determination. If the Accounting Firm determines that no Excise Tax is payable by the end of Executive’s taxable year next following , it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s taxable year applicable federal income tax return would not result in which the related taxes are remittedimposition of a negligence or similar penalty. Any determination by the Accounting Firm will 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 (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that If the Company exhausts its remedies pursuant to Section 10(cParagraph 7(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will shall notify the Company in writing of any claim by the Internal Revenue Service of the United States (the “Internal Revenue Service”) that, if successful, would require the payment by the Company of the Gross-Up Payment (or an additional amount of Gross-Up Payment) in the event the Internal Revenue Service seeks higher payment. Such notification will shall be given as soon as practicable but no later than ten 10 business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests request in writing from time to time, including, without limitation, accepting including the acceptance of 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 and/or Noble to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(cParagraph 7(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction jurisdiction, and in one or more appellate courts, as the Company will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis basis, and will 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(cParagraph 7(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(cParagraph 7(c)) promptly pay to the Company the amount of such refund to the Company within 30 days of the receipt thereof by the Executive (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(cParagraph 7(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (e) Unless sooner paid pursuant to the foregoing provisions of this Paragraph 7, (i) any tax gross-up payment (within the meaning of Treas. Reg. section 1.409A-3(i)(1)(v)) to be paid to or for the benefit of the Executive pursuant to this Paragraph 7 shall be paid no later than the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the Executive remits the related taxes, and (ii) any amount to be paid to or for the benefit of the Executive pursuant to this Paragraph 7 for expenses incurred due to a tax audit or litigation addressing the existence or the amount of a tax liability referred to in this Paragraph 7 shall be paid no later than the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the taxes that are the subject matter of the audit or litigation are remitted to the taxing authority, or where as a result of such audit or litigation no taxes are remitted, the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the audit is completed or there is a final and non-appealable settlement or other resolution of the litigation.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any benefit, payment or distribution by the Company to or for the benefit of 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 10) (a “"Payment”") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 then: Executive will shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, Executive may select the order of reduction shall Payments to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basislimited or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public the Company's regular independent accounting firm reasonably acceptable to at the expense of the Company as may be designated by Executive or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remittedcalculations. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, on an interest-free basis and will shall indemnify and hold 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will be determined that any payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall Executive will direct which Payments are to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basismodified or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will be made by BDO Xxxxxxx Ernst & Young LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Ernst & Young or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 $25,000 100,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP PricewaterhouseCoopers L.L.P. or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx sxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx sxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by by, or benefit from, the Company or any of its Affiliates to or for the benefit of Executive (the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (any such payments, but determined without regard distributions or benefits being individually referred to any additional payments required under this Section 10) (herein as a “Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) ), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and thereon, any penalties, are hereinafter additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “Excise Tax”), then the Executive will shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxesas defined in Section 11(k), 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 such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions The purpose of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments 11 and the Gross-Up Payment, intent of the parties to this Agreement is to place the Executive in the same economic position the Executive would not receive a net after-tax benefit of at least $25,000 (taking into account both income taxes and any have been in had no Excise Tax) as compared Tax been imposed with respect to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c11(c) through (i), all determinations any determination (individually, a “Determination”) required to be made under this Section 1011(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and Payment, shall initially be made, at the assumptions to be utilized in arriving at such determinationCompany’s expense, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably nationally recognized tax counsel mutually acceptable to the Company as may be designated by and the Executive (the “Accounting FirmTax Counsel”) which will ). Tax Counsel shall provide detailed supporting calculations legal authorities, calculations, and documentation both to the Company and the Executive within 15 business days of the receipt termination of notice from Executive that there has been a Paymentthe Executive’s employment, if applicable, or such earlier other time or times as is reasonably requested by the CompanyCompany or the Executive. In If Tax Counsel makes the event initial Determination that no Excise Tax is payable by the accounting firm is serving as accountant Executive with respect to a Payment or auditor for Payments, it shall furnish the individual, entity or group effecting Executive with an opinion reasonably acceptable to the Change in Control, or in the event Executive that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm no Excise Tax will be borne solely by imposed with respect to any such Payment or Payments. The Executive shall have the Companyright to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. Any The Gross-Up Payment, if any, as determined pursuant to this Section 10such Determination shall, will at the Company’s expense, be paid by the Company to the Executive within five business days of the Executive’s receipt of the Accounting Firm’s determination but must be paid such Determination. The existence of a Dispute shall not in any event by the end of Executive’s taxable year next following way affect the Executive’s taxable year right to receive the Gross-Up Payment in which the related taxes are remittedaccordance with such Determination. Any determination by the Accounting Firm will If there is no Dispute, such Determination shall be binding binding, final and conclusive upon the Company and the Executive, subject in all respects, however, to the provisions of Section 11(c) through (i) below. As a result of the uncertainty in the application of Section Sections 4999 and 280G of the Code at the time of the initial determination by the Accounting Firm hereunderCode, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by the Company should have been made (“Underpayment”), consistent with and if upon any reasonable written request from the calculations required Executive or the Company to be made hereunder. In Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at the event Company’s expense, thereafter determines that the Company exhausts its remedies pursuant to Section 10(c) and Executive thereafter is required to make a payment of any Excise Tax or any additional Excise Tax, as the Accounting Firm will case may be, Tax Counsel shall, at the Company’s expense, determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Company shall defend, hold harmless, and indemnify the Executive will notify on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of the Company Executive resulting from any Final Determination (as defined in writing of Section 11(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by the Internal Revenue Service thatExecutive against the Company under this Section 11 (“Claim”), if successfulincluding, would require but not limited to, a claim for indemnification of the payment Executive by the Company of under Section 11(c), then such party shall promptly notify the Gross-Up Payment. Such notification will be given as soon as practicable but no later than ten business days after Executive is informed other party hereto in writing of such claim and apprises Claim (“Tax Claim Notice”). (e) If a Claim is asserted against the Company of Executive (“Executive Claim”), the nature of such claim and the date on which such claim is requested Executive shall take or cause to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take taken such action in connection with contesting such claim Executive Claim as the Company shall reasonably requests request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney including the retention of counsel and experts as are reasonably selected designated by the Company,Company (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that the Company shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (iiii) cooperate with within 30 calendar days after the Company in good faith in order effectively to contest such claimreceives or delivers, and (iv) permit as the Company to participate in any proceedings case may be, the Tax Claim Notice relating to such claim; providedExecutive Claim (or such earlier date that any payment of the taxes claimed is due from the Executive, however, that but in no event sooner than five calendar days after the Company will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with receives or delivers such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(cClaim Notice), the Company will control all proceedings taken shall have notified the Executive in connection with such contest andwriting (“Election Notice”) that the Company does not dispute its obligations (including, at but not limited to, its sole option, may pursue or forgo any indemnity obligations) under this Agreement and all administrative appeals, proceedings, hearings and conferences with that the taxing authority in respect of such claim and may, at its sole option, either direct Executive Company elects to pay the tax claimed and xxx for a refund or contest the claim in any permissible mannercontest, and to control the defense or prosecution of, such Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction Claim at the Company’s sole risk and in one or more appellate courts, as sole cost and expense; and (ii) the Company will determine; provided, however, that if shall have advanced to the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis basis, the total amount of the tax claimed in order for the Executive, at the Company’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 11(g), xxx for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and will agreed by the parties hereto that the Company shall only be entitled to xxx for a refund and the Company shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold the Executive harmless, on an aftera fully grossed-up 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 (iii) the Company shall reimburse the Executive for any and further provided all costs and expenses resulting from any such request by the Company and shall indemnify and hold the Executive harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 11(e) hereof, the Company shall have the right to defend or prosecute, at the sole cost, expense and risk of the Company, such Executive Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by the Company to a Final Determination; provided, however, that (i) the Company shall not, without the Executive’s prior written consent, enter into any compromise or settlement of such Executive Claim that would adversely affect the Executive, (ii) any request from the Company to the Executive regarding any extension of the statute of limitations relating to payment assessment, payment, or collection of taxes for the taxable year of the Executive with respect to which such the contested issues involved in, and amount is claimed to be due of, the Executive Claim relate is limited solely to such contested issues and amount. Furthermore, and (iii) the Company’s control of the any contest will or proceeding shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder the Executive Claim and the Executive will shall be entitled to settle or contest, as the case may bein his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. All payments So long as the Company is diligently defending or prosecuting such Executive Claim, the Executive shall provide or cause to be made hereunder must be made provided to the Company any information reasonably requested by the end Company that relates to such Executive Claim, and shall otherwise cooperate with the Company and its representatives in good faith in order to contest effectively such Executive Claim. The Company shall keep the Executive informed of all developments and events relating to any such Executive Claim (including, without limitation, providing to the Executive copies of all written materials pertaining to any such Executive Claim), and the Executive or his authorized representatives shall be entitled, at the Executive’s taxable year next following Executive’s taxable year expense, to participate in which the taxes are remitted orall conferences, if no taxes are remitted, the taxable year in which the matter is resolved, meetings and all reimbursements proceedings relating to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurredany such Executive Claim. (dg) If, after actual receipt by the Executive of an amount of a tax claimed (pursuant to an Executive Claim) that has been advanced by the Company pursuant to Section 11(e)(ii) hereof, the extent of the liability of the Company hereunder with respect to such tax claimed has been established by a Final Determination, the Executive shall promptly pay or cause to be paid to the Company any refund actually received by, or actually credited to, the Executive with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by the Company to the Executive, whether under the provisions of this Agreement or otherwise. If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c11(e)(ii), a determination is made by the Internal Revenue Service or other appropriate taxing authority that the Executive is shall not be entitled to any refund with respect to such claim tax claimed 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of any Gross-Up Payment Payments and other payments required to be paidpaid hereunder. (h) With respect to any Executive Claim, if the Company fails to deliver an Election Notice to the Executive within the period provided in Section 11(e)(i) hereof or, after delivery of such Election Notice, the Company fails to comply with the provisions of Section 11(e)(ii) and (iii) and (f) hereof, then the Executive shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of the Company, such Executive Claim. The Executive shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by the Executive, the Company shall cooperate, and shall cause its Affiliates to cooperate, in good faith with the Executive and his authorized representatives in order to contest effectively such Executive Claim. The Company may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Executive Claim controlled by the Executive pursuant to this Section 11(h) and shall bear its own costs and expenses with respect thereto. In the case of any Executive Claim that is defended or prosecuted by the Executive, the Executive shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from the Company with respect to costs and expenses incurred by the Executive in connection with such defense or prosecution. (i) In the case of any Executive Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Section 11(i), the Company shall pay, on a fully grossed-up after tax basis, to the Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim that have not theretofore been paid by the Company to the Executive, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by the Company to the Executive, within ten calendar days after such Final Determination. In the case of any Executive Claim not covered by the preceding sentence, the Company shall pay, on a fully grossed-up after tax basis, to the Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim at least ten calendar days before the date payment of such taxes is due from the Executive, except where payment of such taxes is sooner required under the provisions of this Section 11(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 11(i) shall be made within the time and in the manner otherwise provided in this Section 11(i). (j) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other order by a court or other tribunal with appropriate jurisdiction, which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement under Section 7121 of the Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any final disposition by reason of the expiration of all applicable statutes of limitations.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a), if it is 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 both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c)) 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(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will be determined that any payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that 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 both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which time the related taxes are to be remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any benefit, payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 then: Executive will shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that eventThe reduction of the Payments due hereunder, the order of reduction if applicable, shall be first made in such a manner as to maximize the economic present value of all cash payments on a pro rata basisPayments actually made to Executive, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basisdetermined by the Accounting Firm (as defined in Section 10(b) below) as of the date of the Change in Control using the discount rate required by Section 280G(d)(4) of the Code. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public the Company’s regular independent accounting firm reasonably acceptable to at the expense of the Company as may be designated by Executive or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) which will shall provide detailed supporting calculations both to calculations. Any determination by the Accounting Firm shall be binding upon the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the CompanyExecutive. Any Gross-Up Payment, as determined pursuant to this Section 10, will shall be paid by the Company to Executive within five days of after the receipt of the Accounting Firm’s determination determination, but must be paid in any no event by later than December 31 of the end of Executive’s taxable year next following after the Executive’s taxable year in which Executive remits taxes to the related taxes are remitted. Any determination by the Accounting Firm will be binding upon the Company and Executiveapplicable taxing authorities. 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive, but no later than December 31 of the year after the year in which the Underpayment is determined to exist. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, on an interest-free basis and will shall indemnify and hold 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will shall (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or KPMG Peat Marwick unless such other certified public firm shall be the accounting firm reasonably acceptable to of the Company as or any affiliate of the Company at the Date of Termination, in which case such determinations shall be made by an accounting firm of national standing agreed to by the Company and the Executive (which may be designated KPMG Peat Marwick if agreed to by the Executive), or, if the Company does not so agree within 10 days of the Date of Termination, such an accounting firm shall be selected by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, date such firm is selected or such earlier time as is reasonably 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, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of to the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will shall notify the Company in writing of any claim by the an Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing receives written notification of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests request in writing from time to time, includingprovided, without limitationhowever, accepting that the Company's selection of one or more attorneys to provide legal representation with respect to such claim by an attorney reasonably selected by shall be subject to the Company,Executive's prior written approval; (iii) cooperate with the Company in good faith in order effectively to contest such claim, claim effectively; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Deloitte & Touche or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or to contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (e) Notwithstanding the foregoing, (i) each Gross-Up Payment required to be made by the Company to the Executive hereunder and each repayment of a Gross-Up Payment required to be made by the Executive to the Company hereunder shall be paid no later than the end of the calendar year next following the calendar year in which Executive remits the corresponding taxes to the Internal Revenue Service, (ii) each reimbursement of expenses related to a tax contest addressing the existence or amount of a tax liability required to be made by the Company to the Executive hereunder and each repayment of such a reimbursement required to be made by the Executive to the Company hereunder shall be paid no later than the end of the calendar year next following the calendar year in which the Executive remits to the Internal Revenue Service the taxes that are the subject of the contest or, where as a result of the contest no taxes are due or are remitted but other reimbursable costs and/or expenses have been incurred, the end of the calendar year following the calendar year in which the contest is completed or there is a final and nonappealable settlement or other resolution of the contest; and (iii) in the event the Executive is a “specified employee” on the Executive’s Date of Termination (as determined by the Company in accordance with rules established by the Company in writing in advance of the “specified employee identification date” that relates to the date of the Executive’s “separation from service”), and to the extent that any portion of such Gross-Up Payments relates to compensation that was triggered by the Executive’s “separation from service” and/or any portion of such reimbursements related to expenses that were triggered by the Executive’s “separation from service,” such portion of the Gross-Up Payments and/or such portion of the reimbursements, as applicable, shall be paid no earlier than the date that is six months after the date of such “separation from service” (if the Executive dies after the Executive’s Date of Termination but before any such payments are made, the payments will be paid to the Executive’s estate without regard to any six-month delay that otherwise applies to specified employees).

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any benefit, payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 then: Executive will shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, Executive may select the order of reduction shall Payments to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basislimited or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized used in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public the Company’s regular independent accounting firm reasonably acceptable to at the expense of the Company as may be designated by Executive or, at the election and expense of Executive, another nationally recognized independent accounting firm (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remittedcalculations. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, on an interest-free basis and will shall indemnify and hold 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will shall (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Deloitte & Touche or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx sxx for a refund or to contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx sxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company or any of its affiliates (as that term is defined in the regulations promulgated under the Securities Exchange Act of 1934, as amended) under this Agreement to or for the benefit of Executive (whether paid any such payments or payable distributions being individually referred to herein as a "Payment," and any two or distributed more of such payments or distributable pursuant distributions being referred to the terms of this Agreement or otherwiseherein as "Payments"), but determined without regard to any additional payments required under this Section 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and thereon, any penalties, are hereinafter additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the “"Excise Tax”"), then Executive will shall be entitled to receive an additional payment or payments (individually referred to herein as a “"Gross-Up Payment”" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxesas defined in Section 8(k), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a The Gross-Up Payment, but that 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 both income taxes and any Excise Taxrequired by this Section 8(a) as compared are limited to the net after-Excise Tax due on Payments under this Agreement; provided that when calculating the amount of Payments under this Agreement which are subject to an excise tax proceeds to Executive resulting from an elimination under Sections 4999 and 280G of the Gross-Up Payment and a reduction Code, the base amount described in Section 280G(b)(3) of the PaymentsCode shall be allocated (i) first to all payments and distributions by the Company to the Executive subject to such excise tax other than Payments under this Agreement, in the aggregateand (ii) then, to an the extent any of such base amount (the “Reduced Amount”) such that the receipt of is unallocated, to Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basisunder this Agreement. (b) Subject to the provisions of Section 10(c8(c) through (i), all determinations any determination (individually, a "Determination") required to be made under this Section 108(b), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and Payment, shall initially be made, at the assumptions to be utilized in arriving at such determinationCompany's expense, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably nationally recognized tax counsel mutually acceptable to the Company as may be designated by and Executive (the “Accounting Firm”) which will "Tax Counsel"). Tax Counsel shall provide detailed supporting calculations legal authorities, calculations, and documentation both to the Company and Executive within 15 business days of the receipt termination of notice from Executive that there has been a PaymentExecutive's employment, if applicable, or such earlier other time or times as is reasonably requested by the CompanyCompany or Executive. In If Tax Counsel makes the event initial Determination that the accounting firm no Excise Tax is serving as accountant payable by Executive with respect to a Payment or auditor for the individualPayments, entity or group effecting the Change in Control, or in the event it shall furnish Executive with an opinion reasonably acceptable to Executive that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm no Excise Tax will be borne solely by imposed with respect to any such Payment or Payments. Executive shall have the Companyright to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. Any The Gross-Up Payment, if any, as determined pursuant to this Section 10such Determination shall, will at the Company's expense, be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive.five (c) The Company shall defend, hold harmless, and indemnify Executive will notify on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Executive resulting from any Final Determination (as defined in Section 8(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Executive against the Company in writing under this Section 8 ("Claim"), including, but not limited to, a claim for indemnification of any claim by the Internal Revenue Service that, if successful, would require the payment Executive by the Company of under Section 8(c), then such party shall promptly notify the Gross-Up Payment. Such notification will be given as soon as practicable but no later than ten business days after Executive is informed other party hereto in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim Claim ("Tax Claim Notice"). (e) If a Claim is requested asserted against Executive ("Executive Claim"), Executive shall take or cause to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take taken such action in connection with contesting such claim Executive Claim as the Company shall reasonably requests request in writing from time to time, including the retention of counsel and experts as are reasonably designated by the Company (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that the Company shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (i) within 30 calendar days after the Company receives or delivers, as the case may be, the Tax Claim Notice relating to such Executive Claim (or such earlier date that any payment of the taxes claimed is due from Executive, but in no event sooner than five calendar days after the Company receives or delivers such Tax Claim Notice), the Company shall have notified Executive in writing ("Election Notice") that the Company does not dispute its obligations (including, without limitationbut not limited to, accepting legal representation with respect its indemnity obligations) under this Agreement and that the Company elects to contest, and to control the defense or prosecution of, such Executive Claim at the Company's sole risk and sole cost and expense; and (ii) the Company shall have advanced to Executive on an interest-free basis, the total amount of the tax claimed in order for Executive, at the Company's request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 8(g), sue xxx a refund of such tax if such claim by an attorney reasonably selected for refund is disallowed by the Company,appropriate taxing authority (it being understood and (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in shall reimburse Executive for any proceedings relating to such claim; provided, however, that the Company will bear and pay directly all costs and expenses (including additional interest resulting from any such request by the Company and penalties) incurred in connection with such contest and will shall indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold Executive harmless, on an fully grossed- up after-tax basis, from any Excise Tax tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 8(e) hereof, the Company shall have the right to defend or income tax prosecute, at the sole cost, expense and risk of the Company, such Executive Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by the Company to a Final Determination; provided, however, that (including interest i) the Company shall not, without Executive's prior written consent, enter into any compromise or penalties with respect theretosettlement of such Executive Claim that would adversely affect Executive, (ii) imposed with respect any request from the Company to such advance or with respect to any imputed income with respect to such advance; and further provided that Executive regarding any extension of the statute of limitations relating to payment assessment, payment, or collection of taxes for the taxable year of Executive with respect to which such the contested issues involved in, and amount is claimed to be due of, the Executive Claim relate is limited solely to such contested issues and amount. Furthermore, and (iii) the Company’s 's control of the any contest will or proceeding shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder the Executive Claim and Executive will shall be entitled to settle or contest, as the case may bein his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. All payments So long as the Company is diligently defending or prosecuting such Executive Claim, Executive shall provide or cause to be made hereunder must be made provided to the Company any information reasonably requested by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolvedCompany that relates to such Executive Claim, and shall otherwise cooperate with the Company and its representatives in good faith in order to contest effectively such Executive Claim. The Company shall keep Executive informed of all reimbursements developments and events relating to any such Executive Claim (including, without limitation, providing to Executive copies of all written materials pertaining to any such Executive Claim), and Executive or his authorized representatives shall be made hereunder must be made by the end of entitled, at Executive’s taxable year next following Executive’s taxable year 's expense, to participate in which the expenses are incurredall conferences, meetings and proceedings relating to any such Executive Claim. (dg) If, after the actual receipt by Executive of an amount of a tax claimed (pursuant to an Executive Claim) that has been advanced by the Company pursuant to Section 10(c)8(e)(ii) hereof, Executive becomes entitled to receive any refund the extent of the liability of the Company hereunder with respect to such claimtax claimed has been established by a Final Determination, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) shall promptly pay or cause to be paid to the Company the amount of any refund actually received by, or actually credited to, Executive with respect to such refund tax (together with any interest paid or credited thereon after taxes applicable by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by the Company to Executive, whether under the provisions of this Agreement or otherwise. If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c8(e)(ii), a determination is made by the Internal Revenue Service or other appropriate taxing authority that Executive is shall not be entitled to any refund with respect to such claim tax claimed and the Company does not notify 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of any Gross-Up Payment Payments and other payments required to be paidpaid hereunder. (h) With respect to any Executive Claim, if the Company fails to deliver an Election Notice to Executive within the period provided in Section 8(e)(i) hereof or, after delivery of such Election Notice, the Company fails to comply with the provisions of Section 8(e)(ii) and (iii) and (f) hereof, then Executive (i) In the case of any Executive Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Section 8(i), the Company shall pay, on a fully grossed-up after tax basis, to Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim that have not theretofore been paid by the Company to Executive, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by the Company to Executive, within ten calendar days after such Final Determination. In the case of any Executive Claim not covered by the preceding sentence, the Company shall pay, on a fully grossed-up after tax basis, to Executive in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Executive Claim at least ten calendar days before the date payment of such taxes is due from Executive, except where payment of such taxes is sooner required under the provisions of this Section 8(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 8(i)) shall be made within the time and in the manner otherwise provided in this Section 8(i). (j) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other order by a court or other tribunal with appropriate jurisdiction, which has become final and non- appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement under Section 7121 of the Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any final disposition by reason of the expiration of all applicable statutes of limitations.

Certain Additional Payments by the Company. (a) a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) b. Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other a certified public accounting firm reasonably acceptable to the Company firm, law firm, or other advisor as may be designated by Executive the Company (the “Accounting FirmAdvisor”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Advisor is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will Company shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunderAdvisor). All fees and expenses of the Accounting Firm will Advisor shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting FirmAdvisor’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will Advisor 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 Advisor 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will Advisor shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) c. The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 to effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx sxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx sxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) d. If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that as a result, directly or indirectly, of any payment or distribution by the Company to or for the benefit of Executive (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 10) otherwise (a “Payment”) ), the Executive 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 will shall be entitled to promptly 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) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes on the Payment, the Executive retains an amount is in the same after-tax position as if no Excise Tax had been imposed upon the Executive; provided, however, that if the Payment would result in the Executive receiving total “Parachute Payments” within the meaning of Section 280G of the Gross-Up Payment Code, which equal less than one hundred and twenty percent (120%) of the amount that Executive would be entitled to receive without becoming subject to the Excise Tax imposed upon Tax, but for the Payments. Notwithstanding application of this sentence, then the Payment shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such Payment, as so reduced, constitutes an “Excess Parachute Payment” within the meaning of Section 280G of the Code; provided, further, that the foregoing provisions of this Section 10(a)reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate Payment to be provided, if it is determined that Executive is entitled to a Grosson an after-Up Payment, but that Executive, after tax basis (taking into account the Payments and the Gross-Up PaymentExcise Tax imposed, would not receive a net after-tax benefit of at least $25,000 (taking into account both income taxes and any Excise Taxapplicable federal, state and local income taxes). The fact that the Executive’s right to a Payment may be reduced by reason of the limitations contained in this Section 9(a) as compared shall not of itself limit or otherwise affect any other rights of the Executive other than under this Agreement. In the event that a Payment intended to be provided under this Agreement is required to be reduced pursuant to the net after-tax proceeds proviso to this Section 9(a), the Executive resulting from an elimination shall be entitled to designate which portion of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made so reduced in order to give effect to this Section 9(a). The Company shall provide the Executive and with all information reasonably requested by the Payments, in Executive to permit the aggregate, will be reduced Executive to the Reduced Amountmake such designation. In the event that eventthe Executive fails to make such designation within 10 business days after the Effective Date of Termination, the order of Company may effect such reduction shall be first all cash payments on a pro rata basis, then in any equity compensation on a pro rata basis and lastly any benefits on a pro rata basismanner it deems appropriate. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and or when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinationdeterminations, will shall be made by BDO Xxxxxxx LLP or such other certified public the accounting firm reasonably acceptable to the Company as may be designated by Executive of PricewaterhouseCoopers LLP (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, Payment or such earlier time as is requested by the Company. In the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by to the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event determination. If the Accounting Firm determines that no Excise Tax is payable by the end of Executive’s taxable year next following , it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s taxable year applicable federal income tax return would not result in which the related taxes are remittedimposition of a negligence or similar penalty. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing knows of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 Executive to pay the tax claimed to the appropriate taxing authority on behalf of the Executive and direct the Executive to xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs Executive to pay pays such claim and directs the Executive to xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will 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 payment or with respect to any imputed income with respect to such advancepayment; 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of a Gross-Up Payment or payment by the Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10(c9(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 will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after payment by the receipt by Executive Company of an amount advanced by on the Company Executive’s behalf pursuant to Section 10(c9(c), a determination is made that the Executive is 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 will be forgiven and will not be required to be repaid and the amount of such advance will payment shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any other provision of this Section 9, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive hereby consents to such withholding.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or 11 12 otherwise, but determined without regard to any additional payments required under this Section 10) (a “9)(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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Arthxx Xxxexxxx XXX or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.with

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 8) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a8(a), if it is 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the GrossGrosse-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c8(c), all determinations required to be made under this Section 108, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individualsurviving corporation following the Merger, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will may appoint another nationally recognized accounting firm reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 108, will shall be paid by the Company to the Executive within five days of the later of (i) the due date for the payment of any Excise Tax or (ii) the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c8(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c8(c)) 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(c8(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 PaymentsPayment, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Deloitte & Touche or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.Up

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 7 (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that 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 both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c7(c), all determinations required to be made under this Section 107, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably acceptable Arthxx Xxxexxxx XXX (the "Accounting Firm"); provided, however, that the Accounting Firm shall not determine that no Excise Tax is payable by the Executive unless it delivers to the Company as may be designated by Executive a written opinion (the “"Accounting Firm”Opinion") which will provide detailed supporting calculations both that failure to report the Company and Executive within 15 business days Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of the receipt of notice from Executive that there has been a Payment, negligence or such earlier time as is requested by the Companysimilar penalty. In the event that by Deloitte & Touche LLP has served, at any time during the accounting firm is serving two years immediately preceding a Change in Control Date, as accountant or auditor for the individual, entity or group that is involved in effecting or has any material interest in the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder and perform the other functions specified in this Section 7 (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five Within 15 business days of the receipt of notice from the Accounting Firm’s determination but must be paid in any event Executive that there has been a Payment, or such earlier time as is requested by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise TaxCompany, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly shall make all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be determinations required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.under this

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 $25,000 100,000 (taking into account both income 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 PaymentsPayment, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other a certified public accounting firm reasonably acceptable to the Company as may be designated by Executive the Company (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c)9(c) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 $25,000 100,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Coopers & Xxxxxxx LLP L.L.P. or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 $25,000 550,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Ernst & Young LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 Executive will shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is shall be determined that Executive is entitled to a Gross-Up Payment, but that 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 50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction Executive shall direct which Payments are to be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basismodified or reduced. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other a nationally recognized certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will shall be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitteddetermination. Any determination by the Accounting Firm will shall be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive willshall: (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 requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 50,000 (taking into account both income 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 PaymentsPayment, in the aggregate, to an amount (the “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Xxxxxx Xxxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c)9(c) 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(c9(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything Notwithstanding any provision in this Agreement to the contrary notwithstanding and except as set forth below, in the event if it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under pursuant to this Section 10Paragraph 7) (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 will 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, including 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. Notwithstanding the foregoing provisions of this Section 10(aParagraph 7(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(cParagraph 7(c), all determinations required to be made under this Section 10Paragraph 7, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) or, as provided below, such other certified public accounting firm as may be designated by the Executive, which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of after the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In If the event that the accounting firm Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or the Executive shall have the option, in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firmExecutive’s status as the Company’s independent auditorsole discretion, Executive will to appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the “Accounting Firm Firm” hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10Paragraph 7, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event determination. If the Accounting Firm determines that no Excise Tax is payable by the end of Executive’s taxable year next following , it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s taxable year applicable federal income tax return would not result in which the related taxes are remittedimposition of a negligence or similar penalty. Any determination by the Accounting Firm will 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 (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that If the Company exhausts its remedies pursuant to Section 10(cParagraph 7(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will shall notify the Company in writing of any claim by the Internal Revenue Service of the United States (the “Internal Revenue Service”) that, if successful, would require the payment by the Company of the Gross-Up Payment (or an additional amount of Gross-Up Payment) in the event the Internal Revenue Service seeks higher payment. Such notification will shall be given as soon as practicable but no later than ten 10 business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests request in writing from time to time, including, without limitation, accepting including the acceptance of 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 and/or Noble-Switzerland to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(cParagraph 7(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction jurisdiction, and in one or more appellate courts, as the Company will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis basis, and will 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(cParagraph 7(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(cParagraph 7(c)) promptly pay to the Company the amount of such refund to the Company within 30 days of the receipt thereof by the Executive (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(cParagraph 7(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (e) Unless sooner paid pursuant to the foregoing provisions of this Paragraph 7, (i) any tax gross-up payment (within the meaning of Treas. Reg. section 1.409A-3(i)(1)(v)) to be paid to or for the benefit of the Executive pursuant to this Paragraph 7 shall be paid no later than the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the Executive remits the related taxes, and (ii) any amount to be paid to or for the benefit of the Executive pursuant to this Paragraph 7 for expenses incurred due to a tax audit or litigation addressing the existence or the amount of a tax liability referred to in this Paragraph 7 shall be paid no later than the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the taxes that are the subject matter of the audit or litigation are remitted to the taxing authority, or where as a result of such audit or litigation no taxes are remitted, the end of the Executive’s taxable year that immediately follows the taxable year of the Executive in which the audit is completed or there is a final and non-appealable settlement or other resolution of the litigation.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth belownotwithstanding, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of Executive Employee (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 10section) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive Employee 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 Executive will Employee shall be entitled to receive an additional payment (a “Gross-Gross Up Payment”) in an amount such that after payment by Executive Employee 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) and Excise Tax imposed upon the Gross-Gross Up Payment, Executive Employee retains an amount of the Gross-Gross Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding Employee acknowledges that the foregoing provisions of this Section 10(a)Gross Up Payment can be withheld from Employee by the Company and, if it is determined that Executive is entitled to a Gross-Up Paymentinstead, but that 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 both income taxes and any Excise Tax) as compared paid to the net after-tax proceeds to Executive resulting from an elimination Internal Revenue Service on behalf of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced AmountEmployee. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c), all All determinations required to be made under this Section 107(f) with respect to the Excise Tax imposed by Section 4999 of the Code, including whether and when a Gross-the Gross Up Payment is required and the amount of such Gross-Gross Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified public an accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested selected 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, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will accounting firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted. Any determination by the Accounting Firm will accounting firm shall be binding upon the Company and ExecutiveEmployee. 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 accounting firm hereunder, it is possible that Gross-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 it is ultimately determined in accordance with the Company exhausts its remedies pursuant to procedures set forth in this Section 10(c7(f) and Executive thereafter that Employee is required to make a payment of any Code Section 4999 Excise Tax, the Accounting Firm will accounting firm shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will Employee within five days of the receipt of the accounting firm’s determination of the amount of the Underpayment. Employee shall notify the Company in writing of any claim claims by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Gross Up Payment. Such notification will shall be given as soon as practicable but no later than ten business 30 days after Executive is informed Employee actually receives notice in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paidclaim. The Executive will Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which it he 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 Executive Employee in writing prior to the expiration of such period that it desires to contest such claim, Executive willEmployee 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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.;

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement or otherwise, but determined without regard to any additional payments required under this Section 10) 8) (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 will 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, 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. Notwithstanding the foregoing provisions of this Section 10(a8(a), if it is 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 50,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c8(c), all determinations required to be made under this Section 108, including whether and when a Grossgross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Ernst & Young, LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will Firms shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 108, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will Firms 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(c8(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will Firms shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The the Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 desires to contest such claim, the Executive willshall: (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 requests request in writing from form 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c8(c), the Company will 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 xxx for a refund or to contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 inputed 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 's control of the contest will shall be limited to issues with respect to which a Gross-Gross Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c8(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c8(c)) 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(c8(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will be determined that any payment or distribution by the Company to or for the benefit of 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 10) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by 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 Executive will be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 10(a), if it is determined that Executive is entitled to a Gross-Up Payment, but that 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 both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c), all determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will be made by BDO Xxxxxxx LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will provide detailed supporting calculations both to the Company and Executive within 15 business days of the receipt of notice from 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 in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will be paid by the Company to Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which time the related taxes are to be remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 $25,000 100,000 (taking into account both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Coopers & Lybrxxx X.X.P. or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted. Any determination by the Accounting Firm will be binding upon the Company and 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(c) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of the Underpayment that has occurred and any such Underpayment will be promptly paid by the Company to or for the benefit of Executive. (c) The Executive will 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 will be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and apprises the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive will: (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 reasonably requests 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 will bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will indemnify and hold 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 of the foregoing provisions of this Section 10(c), the Company will 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 will determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company will advance the amount of such payment to Executive, on an interest-free basis and will indemnify and hold 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 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 will be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10(c), Executive becomes entitled to receive any refund with respect to such claim, Executive will (subject to the Company’s complying with the requirements of Section 10(c)) 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 Executive of an amount advanced by the Company pursuant to Section 10(c), a determination is made that Executive is not entitled to any refund with respect to such claim and the Company does not notify 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 will be forgiven and will not be required to be repaid and the amount of such advance will offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.Accounting

Certain Additional Payments by the Company. (a) Anything Notwithstanding anything in this Agreement to the contrary notwithstanding and except as set forth belowcontrary, in the event it will shall be determined that any payment or distribution by the Company or its affiliated companies to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 104) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code 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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a4(a), if it is 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 50,000 (taking into account both income 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 “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c4(c), all determinations required to be made under this Section 104, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP or such other certified the Company’s public accounting firm reasonably acceptable to the Company as may be designated by Executive (the “Accounting Firm”) which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10, will 4 shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination determination, but must be paid in any no event by later than the end last day of Executive’s taxable the calendar year next following the Executive’s taxable calendar year in which the related taxes are remittedtax is remitted to the Internal Revenue Service. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm will 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(c4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten 10 business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 desires to contest such claim, the Executive willshall: (i1) give the Company any information reasonably requested by the Company relating to such claim, , (ii2) take such action in connection with contesting such claim as the Company shall reasonably requests 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, (iii3) cooperate with the Company in good faith in order effectively to contest such claim, and (iv4) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c), 4(c) the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, howeverprovided further, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to Executive, the Executive on an interest-free basis and will 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 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 will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c4(c), the Executive becomes entitled to receive receive, and receives, any refund with respect to such claim, the Executive will shall (subject to the Company’s complying with the requirements of Section 10(c4(c)) 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(c4(c), a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109, except as provided in the last sentence of this Section 9(a)) (hereinafter referred to collectively as 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 will shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that 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) 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. Notwithstanding Regardless of whether the foregoing provisions Executive is subject to an Excise Tax, in the event that the Company fails to defer payment of this the amount described in Section 10(a)6(a)(i) in accordance with the proviso to the second sentence thereof, if and it is subsequently determined that Executive is subject to the additional tax and interest provided in Section 409(a)(1)(B) of the Code with respect to any portion of such payment (such additional tax, together with any interest and penalties thereon, are hereinafter collectively referred to as the "Section 409A Penalty") then Executive shall also be entitled to receive an additional payment (a "Section 409A Gross-Up") calculated in the same manner as a Gross-Up Payment, but that Executive, after taking into account the Payments and the Payment by substituting "Section 000X Xxxxxxx" for "Excise Tax" for all purposes of this Section 9. The Section 409A Gross-Up Payment, would not receive shall be considered a net after-tax benefit Payment for purposes of at least $25,000 (taking into account both income taxes and calculation of any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the Payments, in the aggregate, to an amount (the “Reduced Amount”) such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will be made to Executive and the Payments, in the aggregate, will be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basisPenalty. (b) Subject to the provisions of Section 10(c)9(c) hereof, all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx Ernst & Young LLP or such other independent certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (hereinafter referred to as the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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 (“hereinafter referred to as the "Underpayment”), ") consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 10(c9(c) hereof and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of on the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or to contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the The Company’s 's control of the any such contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c)9(c) hereof, the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c)9(c) hereof) 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(c)9(c) hereof, a determination is made that the Executive is 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 will shall be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it will shall be determined that any payment or distribution by the Company to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 109) (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 will 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) 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. Notwithstanding the foregoing provisions of this Section 10(a9(a), if it is 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 both income 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 “"Reduced Amount”") such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment will shall be made to the Executive and the Payments, in the aggregate, will shall be reduced to the Reduced Amount. In that event, the order of reduction shall be first all cash payments on a pro rata basis, then any equity compensation on a pro rata basis and lastly any benefits on a pro rata basis. (b) Subject to the provisions of Section 10(c9(c), all determinations required to be made under this Section 109, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, will shall be made by BDO Xxxxxxx LLP Xxxxxx Xxxxxxxx & Co. L.L.P. or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive (the “"Accounting Firm”") which will shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of 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 Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in of Control, or in the event that serving as the Accounting Firm for purposes of this Section 10(b) would jeopardize the accounting firm’s status as the Company’s independent auditor, Executive will shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm will shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm will shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 109, will shall-be paid by the Company to the Executive within five days of the receipt of the Accounting Firm’s determination but must be paid in any event by the end of Executive’s taxable year next following the Executive’s taxable year in which the related taxes are remitted's determination. Any determination by the Accounting Firm will 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(c9(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will shall determine the amount of the Underpayment that has occurred and any such Underpayment will shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive will 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 will shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and apprises shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive will 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 willshall: (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 requests 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 will shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and will 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 of the foregoing provisions of this Section 10(c9(c), the Company will 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 xxx for a refund or contest the claim in any permissible manner, and 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 will shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company will shall advance the amount of such payment to the Executive, on an interest-free basis and will 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 's control of the contest will shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive will 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. All payments to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the taxes are remitted or, if no taxes are remitted, the taxable year in which the matter is resolved, and all reimbursements to be made hereunder must be made by the end of Executive’s taxable year next following Executive’s taxable year in which the expenses are incurred. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 10(c9(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive will shall (subject to the Company’s 's complying with the requirements of Section 10(c9(c)) 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(c9(c), a determination is made that that- the Executive is 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 will shall-be forgiven and will shall not be required to be repaid and the amount of such advance will shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.