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, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.7) (a “Payment”) would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.74) (a “Payment”the "PAYMENTS") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”"CODE"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”"EXCISE TAX"), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that that, after payment by the Executive of all taxes (including including, without limitation, any Excise Taxincome taxes and any interest and penalties imposed with respect thereto, and any excise tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment or any other payment under this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any Section 409A Gross-Up Payment under Section 8(b)(v)), or under any other agreement with or plan of the Company or the Employer, including, without limitation, the Oshkosh Corporation 1990 Incentive Stock Plan, the Oshkosh Corporation 2004 Incentive Stock and Awards Plan, and any subsequently adopted equity incentive plan (the “Incentive Stock Plans”) or any stock option agreement (the “Stock Option Agreements”) between the Company and the Executive entered into pursuant to an Incentive Stock Plan (in the aggregate “Total Payments”), would constitute an “excess parachute payment,” then the Company shall pay the Executive an additional payments required under this Section 5.7) amount (a the “Gross-Up Payment”) would be subject to an such that the net amount retained by the Executive after deduction of any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”or any successor provision), or and any interest charges or penalties are incurred by in respect of the Executive with respect to any imposition of such excise tax (such excise but not any federal, state or local income tax, together with or employment tax) on the Total Payments, and any such interest federal, state or local income tax, or employment tax, and penalties, are hereafter collectively referred excise tax upon the payment provided for by this Section 8(b)(i) shall be equal to as the “Excise Tax”), Total Payments. Any provisions of any Incentive Stock Plan or the Company shall make Stock Option Agreements that provide for a payment reduction in payments to the Executive (relating to acceleration of vesting of stock options upon a “Gross-Up Payment”Change of Control” (as such term is defined in the Incentive Stock Plan) if such payments would result in an amount such that after the payment by the Executive of all taxes (including any Excise Tax) imposed upon excise tax provided for in Section 280G and Section 4999 of the Gross-Up Payment, the Executive retains (or has had paid Code are null and void and of no further force and effect as they apply to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rates rate of federal income and employment taxation for in the calendar year in which the Gross-Up Payment is to be made, made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the calendar year in which date the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could that may be obtained from the deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below, in the event it shall be determined that any payment, payment or distribution or other action by in the Company nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise (including any additional payments required under this Section 5.7) (a the “Payment”) would be subject (in whole or in part) to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”), or together with any interest or penalties are incurred by the Executive imposed with respect to any such excise tax (such excise taxcollectively, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a the “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) Payment. Unless otherwise provided herein, the product of any deductions disallowed because of the inclusion of the Company’s obligation to make Gross-Up Payment in Payments under this Section 9 shall not be conditioned upon the Executive’s adjusted gross Separation from Service. For purposes of determining the amount of any Gross-Up Payment, the Executive shall be considered to pay federal income and tax at the highest applicable Executive’s actual marginal rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal made and state and local income taxes at the highest Executive’s actual marginal rates rate of federal income taxation for in the calendar year in state and locality of the Executive’s residence on the date on which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate calculated for purposes of taxation for the calendar year in which the Gross-Up Payment is to be madethis Section 9, net of the maximum Executive’s actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of the Executive’s itemized deductions under federal income tax law.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.7) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount equal to the Excise Tax imposed upon the Payments such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.7) 8) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 8, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything in If all, or any portion, of the payments provided under this Agreement Agreement, either alone or together with other payments and benefits which the Executive receives or is entitled to receive from the contrary notwithstandingCompany or an affiliate, would constitute an excess “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of imposition on the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.7) (a “Payment”) would be subject to an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)amended, or then, in addition to any interest or penalties are incurred by other benefits to which the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”)is entitled under this Agreement, the Company shall make a payment to pay an amount (the Executive (a “Gross-Up PaymentAmount”) in an amount such that after payment cash equal to the sum of the excise taxes payable by the Executive by reason of all taxes receiving Parachute Payments (including any Excise Taxpenalties and interest for underpayments) plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 3.9) as if no excise taxes had been imposed upon with respect to Parachute Payments). The Company shall pay the Gross-Up Payment, Amount to the appropriate taxing authorities as withholding taxes on behalf of the Executive retains (or has had paid or, to the Internal Revenue Service on his behalf) an amount extent some or all of the Gross-Up Payment equal Amount is not required to be withheld by the Company, to the sum of Executive) at such time or times when the excise taxes to which the Gross-Up Amount relates are due. Except as may otherwise be agreed to by the Company and the Executive, the amount or amounts (xif any) the Excise Tax imposed upon the Payments and payable under this Section 3.9 shall be conclusively determined (y) the product of any deductions disallowed because for purposes of the inclusion payment of the Gross-Up Payment in Amount and the filing of the Executive’s adjusted gross income and tax return, but subject to the highest applicable marginal rate provisions below) by an independent accounting firm of federal income taxation national reputation selected by the Company with the consent of the Executive (which shall not be unreasonably withheld). Notwithstanding the foregoing, in the event that the Internal Revenue Service assesses a deficiency against the executive for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the a greater amount of excise tax (and other related payments to the Gross-Up PaymentInternal Revenue Service, as contemplated above), then the Company shall within five business days thereafter either assume the defense of such deficiency or pay the additional amounts; provided that (i) the Executive shall be deemed to (i) pay federal income taxes not initiate any proceeding or other contests regarding these matters, other than at the highest marginal rates direction of federal income taxation for the calendar year in which Company, and shall provide notice to the Gross-Up Payment is to be madeCompany of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay applicable state all costs (including without limitation legal and local income taxes at other professional fees) associated therewith. If there is an overpayment of excise tax (and related payments), the highest marginal rate of taxation for Executive within five business days after receiving a refund shall pay over the calendar year in which amount refunded to the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.”

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment, payment or distribution or other action by the Company to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.7) otherwise (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), 1986 or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “an "Excise 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 any Excise Tax) Tax imposed upon the Excise Gross-Up Payment and any ordinary income tax on the Excise Gross-Up Payment in order to put the Executive in the same net after-tax position as if the payment were not subject to any Excise Tax. Subject to the provisions of this Section 8(e), all determinations required to be made hereunder, including whether an Excise Gross-Up Payment is required and the amount of such Excise Gross-Up Payment, shall be made by the accounting firm that audits the financial statements of the Company at that time (the "Accounting Firm") at the sole expense of the Company, which shall provide detailed supporting calculations both to the Company and the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount within 15 business days of the Gross-Up Payment equal to the sum date of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because termination of the inclusion of Executive's employment under this Agreement, if applicable, or such earlier time as is requested by the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.

Certain Additional Payments by the Company. a. (A) Anything in this Agreement Plan to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Executive a Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Plan or otherwise, (including but determined without regard to any additional payments required under this Section 5.7V) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive a Participant with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a payment pay to such Participant (or to the Executive Internal Revenue Service on behalf of Participant) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive such Participant of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive such Participant retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executivesuch Participant’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive a Participant shall be deemed to (i) to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) to pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) to have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-Up Payment.

Certain Additional Payments by the Company. a. A. Anything in this Agreement Plan to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Executive a Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Plan or otherwise, (including but determined without regard to any additional payments required under this Section 5.7V) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive a Participant with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a payment pay to such Participant (or to the Executive Internal Revenue Service on behalf of Participant) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive such Participant of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive such Participant retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executivesuch Participant’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive a Participant shall be deemed to (i) to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) to pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) to have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-Up Payment.

Certain Additional Payments by the Company. a. Anything in If all, or any portion, of the payments provided under this Agreement Agreement, either alone or together with other payments and benefits which the Executive receives or is entitled to receive from the contrary notwithstandingCompany or an affiliate, would constitute an excess “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of imposition on the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.7) (a “Payment”) would be subject to an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)amended, or then, in addition to any interest or penalties are incurred by other benefits to which the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”)is entitled under this Agreement, the Company shall make a payment to pay an amount (the Executive (a “Gross-Up PaymentAmount”) in an amount such that after payment cash equal to the sum of the excise taxes payable by the Executive by reason of all taxes receiving Parachute Payments (including any Excise Taxpenalties and interest for underpayments) plus the amount necessary to put the Executive in the same after-tax position (taking into account any and all applicable federal, state and local excise, income or other taxes at the highest possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 3.8) as if no excise taxes had been imposed upon with respect to Parachute Payments). The Company shall pay the Gross-Up Payment, Amount to the appropriate taxing authorities as withholding taxes on behalf of the Executive retains (or has had paid or, to the Internal Revenue Service on his behalf) an amount extent some or all of the Gross-Up Payment equal Amount is not required to be withheld by the Company, to the sum of Executive) at such time or times when the excise taxes to which the Gross-Up Amount relates are due. Except as may otherwise be agreed to by the Company and the Executive, the amount or amounts (xif any) the Excise Tax imposed upon the Payments and payable under this Section 3.8 shall be conclusively determined (y) the product of any deductions disallowed because for purposes of the inclusion payment of the Gross-Up Payment in Amount and the filing of the Executive’s adjusted gross income and tax return, but subject to the highest applicable marginal rate provisions below) by an independent accounting firm of federal income taxation national reputation selected by the Company with the consent of the Executive (which shall not be unreasonably withheld). Notwithstanding the foregoing, in the event that the Internal Revenue Service assesses a deficiency against the executive for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the a greater amount of excise tax (and other related payments to the Gross-Up PaymentInternal Revenue Service, as contemplated above), then the Company shall within five business days thereafter either assume the defense of such deficiency or pay the additional amounts; provided that (i) the Executive shall be deemed to (i) pay federal income taxes not initiate any proceeding or other contests regarding these matters, other than at the highest marginal rates direction of federal income taxation for the calendar year in which Company, and shall provide notice to the Gross-Up Payment is to be madeCompany of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay applicable state all costs (including without limitation legal and local income taxes at other professional fees) associated therewith. If there is an overpayment of excise tax (and related payments), the highest marginal rate of taxation for Executive within five business days after receiving a refund shall pay over the calendar year in which amount refunded to the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.715) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 15, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. A. Anything in this Agreement Plan to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Executive a Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Plan or otherwise, (including but determined without regard to any additional payments required under this Section 5.7V) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), . or any interest or penalties are incurred by the Executive a Participant with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a payment pay to such Participant (or to the Executive Internal Revenue Service on behalf of Participant) an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive such Participant of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive such Participant retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executivesuch Participant’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive a Participant shall be deemed to (i) to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) to pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) to have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-Up Payment.

Certain Additional Payments by the Company. a. Anything in this --------------------------------------------- Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “Payment”"PAYMENT") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”"EXCISE TAX"), the Company shall make a payment to the Executive (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.taxes and

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity that effectuates a Change of Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.77) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any income, employment and Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate rates of federal each of federal, state and local income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and made (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and (iii) pay all federal, state and local employment-related taxes (including, but not limited to, FICA) at the highest marginal rate of taxation. Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by a method determined by Executive in his sole discretion. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any affiliated entity) or any entity that effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments Payments, and (yii) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. Such Gross-Up Payment will be made at the same time payment is made to the Executive pursuant to Section 4(a)(ii). For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (iA) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (iiB) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 28OG of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(ii), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, otherwise (including without limitation any additional payments required under this Section 5.77.8) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, otherwise (including without limitation any additional payments required under this Section 5.77.8) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxeslocal.

Certain Additional Payments by the Company. a. Anything in (i) In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to the contrary notwithstanding, or any other amounts in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit “nature of the Executive compensation” (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of such change in ownership or effective control (including any additional payments required under this Section 5.7) (a collectively the “PaymentCompany Payments”) would ), and such Company Payments will be subject to an excise the tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any similar tax that may hereafter be imposed by any taxing authority) the Company shall pay to the Executive at the time specified in subsection (iv) below an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up up Payment”) in an amount such that after payment the net amount retained by the Executive Executive, after deduction of all taxes (including any Excise Tax) imposed Tax on the Company Payments and any U.S. federal, state, and for local income or payroll tax upon the Gross-Up Paymentup Payment provided for by this Section 7(b), but before deduction for any U.S. federal, state, and local income or payroll tax on the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment Company Payments, shall be equal to the sum Company Payments. For purposes of determining whether any of the Company Payments and Gross-up Payments (collectively the “Total Payments”) will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax imposed upon Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2) or tax counsel selected by such accountants (the “Accountants”) such Total Payments (in whole or in part) either do not constitute “parachute payments,” represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the product value of any deductions disallowed because non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeCode. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay U.S. federal income taxes at the highest marginal rates rate of U.S. federal income taxation for in the calendar year in which the Gross-Up up Payment is to be made, made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence for the calendar year in which the Gross-Up Company Payment is to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the prior Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and U.S. federal, state and local income tax imposed on the portion of the Gross-up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any portion of the Gross-up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s claim for refund or credit is denied. In the event that the Excise Tax is later determined by the Accountant or the Internal Revenue Service to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment or portion thereof provided for in subsection (iii) above shall be paid not later than the thirtieth (30th) day following an event occurring which subjects the Executive to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Accountant, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to subsection (iii) hereof, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth day after the occurrence of the event subjecting the Executive to the Excise Tax. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. The Company shall be responsible for all charges of the Accountant. The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax covered by this Section 7(b).

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event that it shall be is determined (as hereafter provided) that any payment, payment (other than the Gross-Up payments provided for in this Section 11) or distribution or other action by the Company or any of its affiliates to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation any additional payments required under this Section 5.7) stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”)") (or any successor provision thereto) by reason of being considered "contingent on a change in ownership or control" of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive will be entitled to receive an additional payment or payments (collectively, a “"Gross-Up Payment”) "). The Gross-Up Payment will be 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 any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed considered to pay (ix) pay federal income taxes at the highest marginal rates of federal income taxation for rate in effect in the calendar year in which the Gross-Up Payment is to will be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for in effect in the calendar year state or locality in which the Gross-Up Payment is would be subject to be madestate or local tax, net of the maximum reduction in federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of the Executive Officer (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.77) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 (or its successor or other provision which imposes a similar excise tax) of the Internal Revenue Code of 1986, as amended (the “"Code”"), any excise tax that may be imposed by a state and/or local law, or any interest or penalties are incurred by the Executive Officer with respect to any such excise tax taxes (such excise taxtaxes, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive Officer (a “"Gross-Up Payment”") in an amount such that after payment by the Executive Officer of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive Officer retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s Officer's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Officer shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (A) Anything in this Agreement Plan to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Executive a Participant (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Plan or otherwise, (including but determined without regard to any additional payments required under this Section 5.7V) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive a Participant with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a payment pay to such Participant (or to the Executive Internal Revenue Service on behalf of Participant) an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by the Executive such Participant of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive such Participant retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s such Participant's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive a Participant shall be deemed to (i) to pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) to pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) to have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-Up Payment.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.716) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 16(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 16, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a change in control of the Company, (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) to or for the benefit of the Executive Executive, (whether paid or payable or distributed or distributable pursuant to the terms of this the Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.7) 6), (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax tax, (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”), the Company shall make a payment to ") then the Executive 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 taxes, (including any interest or penalties imposed with respect to such taxes) including, without limitation, any income and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of of, (xi) the Excise Tax imposed upon the Payments Payments, and (yii) an amount equal to the product of any deductions deductions, (or portions thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to to, (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation taxation, (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding any other provision(s) in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any paymentpayment or benefits paid, distribution payable or other action by provided to the Company to Executive or for the his benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseAgreement, when combined with other "parachute payments" (including any additional payments required under this as defined in Section 5.7) (a “Payment”) would be subject to an excise tax imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended amended, (the “"Code”"), or any interest successor provision thereto) provided or penalties are incurred by to be provided to the Executive with respect from the Company, its affiliates and/or plans of the Company and/or its affiliates, would be subject to any such the excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “"Excise Tax”") imposed by Section 4999 of the Code (such payments and/or benefits, whether provided under this Agreement or otherwise, the "Parachute Payments"), then such Parachute Payments shall be reduced to the extent necessary so that no portion of any Parachute Payment is subject to the Excise Tax if (a) the net amount of such Parachute Payments, as so reduced (after deduction of all federal, state and local income taxes on such reduced Parachute Payments) is greater than (b) the excess of (i) the net amount of such Parachute Payments, without reduction (but after deduction of all federal, state and local income taxes on such Parachute Payments), less (ii) the amount of Excise Tax to which the Employee would be subject in respect of such Parachute Payments. All determinations required to be made under this Paragraph 9 shall be made by a lawyer, a certified public accountant with a nationally recognized certified public accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be designated by the Company (the "Independent Tax Counsel"), which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the receipt of notice from the Employee that there has been a Parachute Payment, or such earlier time as is requested by the Company. Such determination shall be binding on the parties hereto. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be determined in the sole discretion of the Company; provided, however, that unless the Executive gives written notice specifying a different order to the Company to effectuate the limitations described above, the Company shall make first reduce or eliminate, as the case may be, those payments or benefits that will cause a payment dollar-for-dollar reduction in total Parachute Payments, and then by reducing or eliminating other Parachute Payments, to the Executive (a “Gross-Up Payment”) extent possible, in an amount such reverse order beginning with payments or benefits that after payment by are to be paid the Executive of all taxes (including any Excise Tax) imposed upon farthest in time from the Gross-Up Payment, date the Executive retains (reduction or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment elimination is to be made. For purposes Any notice given by the Executive pursuant to the preceding sentence, unless prohibited by law, shall take precedence over the provisions of determining any other plan, arrangement or agreement governing the amount Executive's rights and entitlement to any benefits or compensation. All fees and expenses of the Gross-Up Payment, the Executive Independent Tax Counsel shall be deemed to (i) pay federal income taxes at borne solely by the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.7) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (iI) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(ii), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or other action by the Company to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.7section) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive Employee with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively hereinafter referred to as the “Excise Tax”), the Company then Employee shall make a be entitled to receive an additional payment to the Executive (a “Gross-Gross Up Payment”) in an amount such that after payment by the 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) Tax imposed upon the Gross-Gross Up Payment, Employee retains an amount of the Executive retains (or has had Gross Up Payment equal to the Excise Tax imposed upon the Payments. Employee acknowledges that the Gross Up Payment can be withheld from Employee by the Company and, instead, paid to the Internal Revenue Service on his behalfbehalf of Employee. All determinations required to be made under this Section 7(f) an amount of the Gross-Up Payment equal with respect to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because by Section 4999 of the inclusion of Code, including whether and when the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Gross Up Payment is required and the amount of such Gross Up Payment and the assumptions to be madeutilized in arriving at such determination, shall be made by an accounting firm selected by the Company. For purposes All fees and expenses of determining the accounting firm shall be borne solely by the Company. Any determination by the accounting firm shall be binding upon the Company and Employee. 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 it is ultimately determined in accordance with the procedures set forth in this Section 7(f) that Employee is required to make a payment of any Code Section 4999 Excise Tax, the accounting firm shall determine the amount of the Gross-Underpayment that has occurred and any such Underpayment shall be paid by the Company to or for the benefit of 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 claims by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross Up Payment, the Executive . Such notification shall be deemed given as soon as practicable but no later than 30 days after Employee actually receives notice in writing of such claim. Employee shall not pay such claim prior to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net expiration of the maximum reduction 30-day period following the date on which 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 Employee in federal income taxes which could be obtained from deduction writing prior to the expiration of such state and local taxes.period that it desires to contest such claim, Employee shall:

Certain Additional Payments by the Company. a. Anything in If all, or any portion, of the payments provided under this Agreement Agreement, either alone or together with other payments and benefits which the Executive receives or is entitled to receive from the contrary notwithstandingCompany or an affiliate, would constitute an excess “parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (whether or not under an existing plan, arrangement or other agreement) (each such parachute payment, a “Parachute Payment”), and would result in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of imposition on the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.7) (a “Payment”) would be subject to an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)amended, or then, in addition to any interest or penalties are incurred by other benefits to which the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Paymentis entitled under this Agreement, the Executive retains (or has had shall be paid to by the Internal Revenue Service on his behalf) Company an amount of the Gross-Up Payment in cash equal to the sum of the excise taxes payable by the Executive by reason of receiving Parachute Payments (xincluding any penalties and interest for underpayments) plus the Excise Tax imposed upon amount necessary to put the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment Executive in the Executive’s adjusted gross same after-tax position (taking into account any and all applicable federal, state and local excise, income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income or other taxes at the highest marginal possible applicable rates on such Parachute Payments (including without limitation any payments under this Section 3.9) as if no excise taxes had been imposed with respect to Parachute Payments). Except as may otherwise be agreed to by the Company and the Executive, the amount or amounts (if any) payable under this Section 3.9 shall be conclusively determined (for purposes of federal the payment of the gross up amount and the filing of the Executive’s income taxation tax return, but subject to the provisions below) by an independent accounting firm of national reputation selected by the Company with the consent of the Executive (which shall not be unreasonably withheld). Notwithstanding the foregoing, in the event that the Internal Revenue Service assesses a deficiency against the executive for a greater amount of excise tax (and other related payments to the calendar year in which Internal Revenue Service, as contemplated above), then the Gross-Up Payment is Company shall within five business days thereafter either assume the defense of such deficiency or pay the additional amounts; provided that (i) the Executive shall not initiate any proceeding or other contests regarding these matters, other than at the direction of the Company, and shall provide notice to be madethe Company of any proceeding or other contest regarding these matters initiated by the Internal Revenue Service, and (ii) the Company shall be entitled to direct and control all such proceeding and other contests, if it commits to and does pay applicable state all costs (including without limitation legal and local income taxes at other professional fees) associated therewith. If there is an overpayment of excise tax (and related payments), the highest marginal rate of taxation for Executive within five business days after receiving a refund shall pay over the calendar year in which amount refunded to the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.

Certain Additional Payments by the Company. a. Anything in this the Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “Payment”"PAYMENT") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”"EXCISE TAX"), the Company shall make a payment to the Executive (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.74) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including including, without limitation, any Excise Taxincome taxes and any interest and penalties imposed with respect thereto, and any excise tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a Change in Control of the Company (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) 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, (including but determined without regard to any additional payments required under this Section 5.76) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount 10 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 and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and (yii) an amount equal to the product of any deductions (or portion thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (iI) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.715) (a “Payment”the "PAYMENTS") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”"CODE"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”"EXCISE TAX"), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross"GROSS-Up Payment”UP PAYMENT") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "SAFE HARBOR CAP"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 15, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, and whether or not a Covered Termination of Employment occurs, in the event it shall be determined that any payment, payment or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.77) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), ") or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) Tax imposed upon on the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments Subject to the provisions of paragraph (c) of this Section 7, all determinations required to be made under this Section 7, including whether and (y) the product of any deductions disallowed because of the inclusion of the 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, shall be made by a certified public accounting firm designated by the Executive (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen 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, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 7, shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the Executive’s adjusted gross income 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 7 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 paragraph (c) of this Section 7 and the highest applicable marginal rate Executive thereafter is required to make a payment of federal income taxation any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. Notwithstanding the foregoing, if the Executive is a "specified employee" (within the meaning of Code Section 409A) as of the date of the Executive's Termination of Employment, the Company shall pay any Gross-Up Payment and any Underpayment no earlier than the first day following the six-month anniversary of the Executive's Termination of Employment and no later than December 31 of the calendar year following the calendar year in which the Gross-Up Payment is to be madeExecutive pays the Excise Tax. For purposes The Executive shall notify the Company in writing of determining any claim by the amount Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty-day period following the date on which she gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: give the Company any information reasonably requested by the Company relating to such claim, take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company. cooperate with the Company in good faith in order effectively to contest such claim, and permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive 8 harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this paragraph (c) of Section 7, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or 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 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 shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by the Executive of an amount advanced by the Company pursuant to paragraph (c) of this Section 7, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of paragraph (c) of this Section 7) 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 paragraph (c) of this Section 7, a determination is made that the Executive shall not be deemed entitled to (i) pay federal income taxes at any refund with respect to such claim and the highest marginal rates Company does not notify the Executive in writing of federal income taxation for its intent to contest such denial of refund prior to the calendar year in which expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment is required to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxespaid.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.7) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.716) (each a “Payment”) ), would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and Payments, plus (y) the product of (i) any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and income, multiplied by (ii) the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company then Executive shall make a be entitled to receive an additional payment to the Executive or payments (each, 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 and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) , imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon such Payment. For purposes of determining the Payments and (y) the product of any deductions disallowed because of the inclusion amount of the Gross-Up Payment in the Executive’s adjusted gross up Payment, Executive shall be deemed to pay federal income and taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, made and (ii) pay any applicable state and and/or local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution distribution, benefit, equity-based or other compensation or other transfer or action 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 otherwiseotherwise and including, (including without limitation, any additional payments required under this Section 5.75(h)) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate rates of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local income taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, notwithstanding in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Payment Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x1) the Excise Tax imposed upon the Payments and (y2) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i1) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(2), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event that it shall be is determined (as hereafter provided) that any payment, payment (other than the Gross-Up payments provided for in this Section 11) or distribution or other action by the Company or any of its affiliates to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation any additional payments required under this Section 5.7) stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”)") (or any successor provision thereto) by reason of being considered "contingent on a change in ownership or control" of the Company, within the meaning of Section 28OG of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive will be entitled to receive an additional payment or payments (collectively, a “"Gross-Up Payment”) "). The Gross-Up Payment will be 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 any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed considered to pay (ix) pay federal income taxes at the highest marginal rates of federal income taxation for rate in effect in the calendar year in which the Gross-Up Payment is to will be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for in effect in the calendar year state or locality in which the Gross-Up Payment is would be subject to be madestate or local tax, net of the maximum reduction in federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.74) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company then Executive shall make a be entitled to receive an additional payment to the Executive (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 and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income tax upon the Payments, Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of (before deductions for any federal, state or local income or employment taxes on the Gross-Up Payment Payments) equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) an amount equal to the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. Notwithstanding the foregoing, if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Executive, after taking into account the Payments and the Gross-Up Payment, would not receive net after-tax proceeds of at least $50,000 (taking into account income and employment taxes and any Excise Tax) in excess of 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 shall be made to the Executive and the Payments, in the aggregate, shall be reduced in the manner elected by the Executive to the Reduced Amount. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the increase of the Gross-up Payment in the Executive’s adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstandingnot- withstanding, in the event it shall be determined that any payment, payment or distribution or other action by the Company to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.7) 8) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision) or any interest or penalties penal- ties are incurred by the Executive Employee with respect to any such excise ex- cise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”)") , then the Company Employee shall make a be entitled to receive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the 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) Tax imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments Payments. (b) Subject to the provisions of Section 8(c) of this Agreement, all determinations required to be made under this Section 8, including whether and (y) when a Gross-Up Pay- ment is required and the product amount of any deductions disallowed because of the inclusion of the such Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate assumptions to be utilized in arriving at such determi- nation, shall be made by Deloitte & Touche (or any successor thereto by merger or operation of federal income taxation law) (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days of the receipt of a request from the Employee, or such ear- lier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the calendar year in individual, entity or group effecting the Change of Con- trol, the Employee shall appoint another nationally recog- nized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment Payment, as determined pursuant to this Section 8, shall be paid by the Company to the Employee within five days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is pay- able by the Employee, it shall furnish the Employee with a written opinion that failure to report the Excise Tax on the Employee's applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the un- certainty 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 mademade hereunder. For purposes In the event that the Company ex- hausts its remedies pursuant to Section 8(c) of determining this Agree- ment and the Employee thereafter is required to make a pay- ment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee. (c) The Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if suc- cessful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Employee is informed in writing of such claim and shall ap- prise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Employee shall not pay such claim prior to the expiration of the 30- day period following the date on which 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 the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall be deemed to Employee shall: (i) give the Company any information reasona- blx xequested by the Company relating to such claim, (ii) take such action in connection with con- testing such claim as the Company shall reasonably re- quest in writing from time to time, including, without limitation, accepting legal representation with re- spect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay federal di- rectly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after- tax basis, for any Excise Tax or income tax (including in- terest and penalties with respect thereto) imposed as a re- suxx xf such representation and payment of costs and ex- penses. Without limitation on the foregoing provisions of this Section 8(c), the Company shall control all proceedings taken in connection with such contest and, at its sole op- tion, may pursue or forgo any and all administrative ap- peals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole op- tion, either direct the Employee to pay the tax claimed and sux xor a refund or to contest the claim in any permissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Employee to pay such claim and sux xor a refund, the Company shall advance the amount of such payment to the Employee, on an interest-free basis and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or income tax (includ- ing interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed in- come with respect to such advance; and provided, further that any extension of the statute of limitations relating to payment of taxes at the highest marginal rates of federal income taxation for the calendar taxable year in of the Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to is- sues with respect to which a Gross-Up Payment would be pay- able hereunder and the Employee 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. (d) If, after the receipt by the Employee of an amount advanced by the Company pursuant to Section 8(c) of this Agreement, the Employee becomes entitled to receive any refund with respect to such claim, the Employee shall (sub- ject to the Company's complying with the requirements of Section 8(c) of this Agreement) 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 Employee of an amount advanced by the Company pursuant to Section 8(c) of this Agreement, a determination is made that the Employee shall not be enti- tled to any refund with respect to such claim and the Com- pany does not notify the Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be maderepaid and the amount of such advance shall offset, and (ii) pay applicable state and local income taxes at to the highest marginal rate extent thereof, the amount of taxation for the calendar year in which the Gross-Up Payment is required to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxespaid. 9.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity that effectuates a Change of Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.77) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any income, employment and Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate rates of federal each of federal, state and local income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and made (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and (iii) pay all federal, state and local employment-related taxes (including, but not limited to, FICA) at the highest marginal rate of taxation. Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by a method determined by Executive in her sole discretion. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a payment pay to Executive (or to the Executive Internal Revenue Service on behalf of Executive) an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 3(a)(3), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.5) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment, payment or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.7Section) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code because the Payment is considered a “parachute payment” under Section 280G of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect to them) and Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal Federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of adjusted gross income), and to have otherwise allowable deductions for Federal, state and local taxesincome tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in adjusted gross income. Notwithstanding the foregoing provisions of this Section, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the present values as of the date of the Change of Control, determined in accordance with Sections 280G(b)(2)(ii) and 280G(d)(4) of the Code (the “Present Value”), of the Payments does not exceed 110% of the greatest Present Value of Payments (the “Safe Harbor Cap”) that could be paid to the Executive such that the receipt would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the amounts payable to Executive under this Agreement shall be reduced to the maximum amount that could be paid to the Executive such that the Present Value of the Payment does not exceed the Safe Harbor Cap. The reduction of the amounts payable. if applicable, shall be made by reducing the payments as elected by the Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable would not result in a reduction of the Present Value of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity that effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.7) 8) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive Employee with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Employee an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive Employee of all taxes (including any income, employment and Excise Tax) imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the ExecutiveEmployee’s adjusted gross income and the highest applicable marginal rate rates of federal each of federal, state and local income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and made (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and (iii) pay all federal, state and local employment-related taxes (including, but not limited to, FICA) at the highest marginal rate of taxation. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined that Employee is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by a method determined by Employee in his sole discretion. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. 7.8.1 Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution distribution, benefit, equity-based or other compensation or other transfer or action 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, (otherwise and including without limitation any additional payments required under this Section 5.77.8) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxeslocal.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a Change in Control of the Company (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) 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, (including but determined without regard to any additional payments required under this Section 5.76) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive 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 and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and (yii) an amount equal to the product of any deductions (or portion thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (3) have otherwise allowable deductions for federal income tax 10 purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including any additional payments required under this Section 5.77) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive Employee with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive Employee (a “"Gross-Up Payment”") in an amount such that after payment by the Executive Employee of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s Employee's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (iI) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.79) (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 (or any successor provision thereto) of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) , imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon Payments. (b) Subject to the Payments and (y) the product provisions of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Section 9(c), all determinations required to be made under this Section 9, including whether a Gross-Up Payment is to be made. For purposes of determining required and the amount of the such Gross-Up Payment, shall be made by a firm of independent public accountants selected by Group prior to the Change of Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive shall be deemed to within fifteen (i15) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net business days of the maximum reduction in federal income taxes which could be obtained receipt of notice from deduction of the Executive that there has been a Payment, or such state and local taxes.earlier time as is requested by the Company or the Executive. In the event that the Accounting Firm is serving as accountant or auditor for

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all aU taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in in. the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. .

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, notwithstanding in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make pay to Executive an additional payment ( a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Payment Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x1) the Excise Tax imposed upon the Payments and (y2) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i1) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under

Certain Additional Payments by the Company. a. Anything in this -------------------------------------------- Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes (and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income.

Certain Additional Payments by the Company. a. Anything in this ------------------------------------------- Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.79(e) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, otherwise (including without limitation any additional payments required under this Section 5.7) ), (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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) including, (including without limitation any additional payments required under this Section 5.75(g) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate rates of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local income taxes.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, otherwise (including without limitation any additional payments required under this Section 5.74(g)) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or other action by the Company or its affiliated companies (or one or more trusts established by the Company or its affiliates for the benefit of its employees) or by any other party in connection with a Change in Control 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”"payment") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company then Executive shall make a be entitled to receive an additional payment to the Executive (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 and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) , imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything (a) Subject to Section 9(f), anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its Affiliates) or any entity which effectuates a Change in Control (or any of its Affiliates) 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, (including but determined without regard to any additional payments required under this Section 5.716) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest actual marginal rates of federal income taxation applicable to Executive for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest actual marginal rate of taxation applicable to Executive for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 16(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 16, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event if it shall be is determined that any payment, payment or distribution or other action 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, (including but determined without regard to any additional payments required under this Section 5.7Section) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code because the Payment is considered a “parachute payment” under Section 280G of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect to them) and Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal Federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of adjusted gross income), and to have otherwise allowable deductions for Federal, state and local taxesincome tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in adjusted gross income. Notwithstanding the foregoing provisions of this Section, if it is determined that the Executive is entitled to a Gross-Up Payment, but that the present values as of the date of the Change of Control, determined in accordance with Sections 280G(b)(2)(ii) and 280G(d)(4) of the Code (the “Present Value”), of the Payments does not exceed 110% of the greatest Present Value of Payments (the “Safe Harbor Cap”) that could be paid to the Executive such that the receipt would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the amounts payable to Executive shall be reduced to the maximum amount that could be paid to the Executive such that the Present Value of the Payment does not exceed the Safe Harbor Cap. The Payments shall be reduced in a manner that maximizes the Executive’s economic position. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code, and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its Affiliates) or any entity which effectuates a Change in Control (or any of its Affiliates) 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, (including but determined without regard to any additional payments required under this Section 5.716) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 16(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 16, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in the event that it shall be is determined (as hereinafter provided) that any payment, payment (other than the Gross-Up Payments provided for in this Section 11) or distribution or other action by the Company or any of its affiliates to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (including policy, plan, program or arrangement, including, without limitation, any additional payments required under this Section 5.7) stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”) ), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code (or any successor provision thereto), by reason of 1986being considered “contingent on a change in ownership or control” of the Company, as amended within the meaning of Section 280G of the Code (the “Code”)or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are hereafter being hereinafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive will be entitled to receive an additional payment or payments (collectively, a “Gross-Up Payment”) ). The Gross-Up Payment will be 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 any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed considered to pay (ix) pay federal income taxes at the highest marginal rates of federal income taxation for rate in effect in the calendar year in which the Gross-Up Payment is to will be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for in effect in the calendar year state or locality in which the Gross-Up Payment is would be subject to be madestate or local tax, net of the maximum reduction in federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.7) 8) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 8(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments”under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 8, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything 19. In the event that it is determined (as hereinafter provided) that any payment (other than the Gross-Up Payments provided for in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, paragraph 19 and Annex A) or distribution or other action by the Company or any of its affiliates to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation the lapse or termination of any additional payments required restriction on the vesting or exercisability of any benefit under this Section 5.7) any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by U. S. state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive will be entitled to receive an additional payment or payments (collectively, a “"Gross-Up Payment”) "). The Gross-Up Payment will be in an amount such that that, after payment by the Executive of all U. S. taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed considered to (i) pay federal any applicable U. S. federal, state and local income taxes at the highest marginal rates of federal income taxation for rate applicable to the calendar Executive in effect in the year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to will be made, net of the maximum reduction in U. S. federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in this ----------------------------------------------- Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution or other action acceleration of awards, payments or benefits by the Company or its affiliated companies to or for the your benefit of the Executive (whether paid or payable or paid, payable, distributed or distributable or accelerated pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.77) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive you with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company then you shall make a be entitled to receive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive you of all taxes (including any interest or penalties imposed with respect to such taxes) including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income tax upon the Executive retains (or has had paid to the Internal Revenue Service on his behalf) Payments, you retain an amount of (before deductions for any federal, state or local income or employment taxes on the Gross-Up Payment Payments) equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) an amount equal to the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s your adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. Notwithstanding the foregoing, in the event it shall be determined that you would be entitled to a Gross-Up Payment and that you, after taking into account the Payments and the Gross-Up Payment, would not receive net after-tax proceeds of at least $50,000 (taking into account income and employment taxes and any Excise Tax) in excess of the net after-tax proceeds to you 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 shall be made to you and the Payments, in the aggregate, shall be reduced as elected by you to the Reduced Amount. For purposes of determining the amount of the Gross-Up Payment, the Executive you shall be deemed to (iI) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (iiII) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (III) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the increase of the Gross-Up Payment in your adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any affiliated entity) or any entity that effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a) (ii), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, payment or distribution or other action by from the Company to the Executive or for the benefit of the Executive (Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including otherwise but determined without regard to any additional payments required under this Section 5.7) 7 (a “Payment”) ), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and Payments; plus (yii) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and multiplied by the highest applicable marginal rate of federal federal, state, or local income taxation taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes (b) Subject to the provisions of determining Section 7(c), all determinations required to be made under this Section 7, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by Ernst & Young LLP or another nationally recognized certified public accounting firm as may be selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment which would be subject to the Excise Tax, 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, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). The initial Gross-Up Payment, if any, as determined pursuant to this Section 7(b), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with an opinion that the Executive has substantial authority not to report any Excise Tax on the Executive’s federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that a Gross-Up Payment 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 7(c) and the Executive thereafter is required to may a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment, . Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim, and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be deemed paid. The Executive shall not pay any claim prior to (i) pay federal income taxes at the highest marginal rates expiration of federal income taxation for the calendar year in 30-day period following the date on which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.Executive gives 5

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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) including, (including without limitation any additional payments required under this Section 5.75(g) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate rates of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxeslocal.

Certain Additional Payments by the Company. a. 6.1 Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined (as hereafter provided) that any payment, payment (other than the Gross-Up payments provided for in this Section 6) or distribution or other action by the Company or its affiliates to or for the benefit of the Executive (Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation any additional payments required under this Section 5.7) stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended amended, and the regulations thereunder (the “"Code”)") by reason of being considered "contingent on a change in ownership or control" of the Company within the meaning of Section 280G of the Code, or any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), then the Company Employee shall make be entitled to receive an additional payment or payments (collectively, a payment to the Executive (a “"Gross-Up Payment”) "). The Gross-Up Payment shall be in an amount such that that, after payment by the Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Employee will be deemed considered to pay (ix) pay federal income taxes at the highest marginal rates of federal income taxation for rate in effect in the calendar year in which the Gross-Up Payment is to will be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for in effect in the calendar year state or locality in which the Gross-Up Payment is would be subject to be madestate or local tax, net of the maximum reduction in federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.715) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 15, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs prior to January 1, 2003, and it shall be determined that that, as a result of such Change of Control, any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “Payment”) would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in this Agreement to the contrary notwithstanding, in In the event it shall be determined that any paymentportion of the benefits payable under this Agreement, distribution and any other payments and benefits under any other agreement with, or other action by plan of the Company to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to in aggregate, "Total Payments") constitute an "excess parachute payment" within the terms meaning of this Agreement or otherwise, (including any additional payments required under this Section 5.7) (a “Payment”) would be subject to an excise tax imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “"Code”"), or then the Company shall pay the Employee as promptly as practicable following such determination an additional amount (the "Gross-up Payment") calculated as described below to reimburse the Employee on an after-tax basis for any excise tax imposed on such payments under Section 4999 of the Code. The Gross-up Payment shall equal the amount, if any, needed to ensure that the net parachute payments (including the Gross-up Payment) actually received by the Employee after the imposition of federal and state income, employment and excise taxes (including any interest or penalties are incurred imposed by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment Service), are equal to the sum amount that the Employee would have netted after the imposition of (x) the Excise Tax imposed upon the Payments federal and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross state income and employment taxes, had the highest applicable marginal rate of federal income taxation for Total Payments not been subject to the calendar year in which the Gross-Up Payment is to be madetaxes imposed by Section 4999. For purposes of determining this calculation, it shall be assumed that the Employee's tax rate will be the maximum federal rate to be computed with regard to Section 1(g) of the Code. In the event that the Employee and the Company are unable to agree as to the amount of the Gross-Up up Payment, if any, the Executive Company shall select a law firm or accounting firm from among those regularly consulted (during the twelve-month period immediately prior to a Change-in-Control) by the Company regarding federal income tax maters and such law firm or accounting firm shall determine the amount of Gross-up Payment and such determination shall be deemed to (i) pay federal income taxes at final and binding upon the highest marginal rates of federal income taxation for Employee and the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesCompany.

Certain Additional Payments by the Company. a. a) Anything in this Agreement to the contrary 9 notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company ( or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a “Payment”the "Payments") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), then the Company shall make a pay to Executive an additional payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (iI) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. a) Subject to the provisions of Section 5(a), all determinations required to be made under this Section 5, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action 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) including, (including without limitation any additional payments required under this Section 5.75(g) (a “"Payment”") would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate rates of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local income taxes. The Gross-Up Payment shall be paid to Executive no later than the end of the taxable year next following the taxable year in which Executive remits the taxes related to the Gross-Up Payment.

Certain Additional Payments by the Company. a. 9.7.1. Anything in this Agreement to the contrary notwithstandingnotwithstanding and except as set forth below in this Section 9 or as otherwise provided in Section 17.3, in the event it shall be determined that any payment, payment or distribution or other action by in the Company nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, otherwise (including any additional payments required under this Section 5.7) (a the “Payment”) would be subject (in whole or in part) to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”), or together with any interest or penalties are incurred by the Executive imposed with respect to any such excise tax (such excise taxcollectively, together with any such interest and penalties, are hereafter collectively referred to as the “Excise Tax”), the Company shall make a payment to then the Executive shall be entitled to receive an additional payment (a “the ‘Gross-Up Payment”) in an amount such that that, after payment by the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect to such taxes) and Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of Payment. The Company’s obligation to make the Gross-Up Payment in under this Section 9 shall not be conditioned upon the Executive’s adjusted gross income and the highest applicable marginal rate termination of federal income taxation for the calendar year in which the Gross-Up Payment is to be madeemployment. For purposes of determining the amount of the any Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes tax at the highest marginal rates rate of federal income taxation for in the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable any state and local income taxes at the highest marginal tax rate in the state and locality of taxation for the calendar year in which Executive’s residence on the date of the Gross-Up Payment is to be madecalculated for the purposes of this Section 9.7, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of the Executive’s itemized deductions under federal income tax law.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.715) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under clauses (A) and (E) of Section 8(c), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a Change in Control of the Company (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) to or for the benefit of the 9 Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.76) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive 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 and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and (yii) an amount equal to the product of any deductions (or portion thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any affiliate), or any entity which effectuates a Change in Control, to or for the benefit of the Executive Xxxxx (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.712) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive Xxxxx with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Xxxxx an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive Xxxxx of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive Xxxxx retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s Xxxxx’x adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Xxxxx shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes (and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Xxxxx’x adjusted gross income.

Certain Additional Payments by the Company. a. (i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control of the Company (or any of its affiliated entities) as defined in the Prior Agreement, to or for the benefit of the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, the Agreement between the Company and Executive dated the date hereof, or otherwise, (including but determined without regard to any additional payments required under this Section 5.77(f)) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (ix) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that no Excise Tax is applicable, this Section 7(f) shall not be applicable.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a Change in Control of the Company (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) 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, (including but determined without regard to any additional payments required under this Section 5.76) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive 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 and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and (yii) an amount equal to the product of any deductions (or portions thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and 13 local taxestaxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. (1) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.78(f)) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that no Excise Tax is applicable, this Section 8(f) shall not be applicable.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything contained in this Agreement to the contrary notwithstandingcontrary, in the event that it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) made by the Company or any of its subsidiaries or any Successor 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, (including but determined without regard to any additional payments required under this Section 5.7Annex A) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, penalties are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a payment pay to the Executive an additional payment (a “Gross-Up up Payment”) in an amount such that after payment by the Executive of all taxes (including any the Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up up Payment equal to the sum of (x) the Excise Tax imposed upon on the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay all applicable state and other local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made. Notwithstanding the foregoing provisions of this Annex A, net if it shall be determined that the Executive is entitled to a Gross-up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to the Executive under this Agreement shall be so reduced (but not below zero) to the maximum reduction in federal income taxes which amount that could be obtained from deduction paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-up Payment shall be made to Executive. For purposes of such state reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and local taxesno other Payments) shall be reduced.

Certain Additional Payments by the Company. a. 6.1 Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined (as hereafter provided) that any payment, payment (other than the Gross-Up payments provided for in this Section 6) or distribution or other action by the Company Company, Holdings or any of their affiliates to or for the benefit of the Executive (Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation any additional payments required under this Section 5.7) stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code by reason of 1986being considered "contingent on a change in ownership or control" of the Company or Holdings, as amended (within the “meaning of Section 280G of the Code”), or any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), then the Company Employee shall make be entitled to receive an additional payment or payments (collectively, a payment to the Executive (a “"Gross-Up Payment”) "). The Gross-Up Payment shall be in an amount such that that, after payment by the Executive Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Employee will be deemed considered to pay (ix) pay federal income taxes at the highest marginal rates of federal income taxation for rate in effect in the calendar year in which the Gross-Up Payment is to will be made, made and (iiy) pay applicable state and local income taxes at the highest marginal rate of taxation for in effect in the calendar year state or locality in which the Gross-Up Payment is would be subject to be madestate or local tax, net of the maximum reduction in federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything in (a) Subject to and as provided by Section 5(f) of this Agreement to the contrary notwithstandingAgreement, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change of Control (or any of its affiliated entities) to or for the benefit of the Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.7Appendix A) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive Employee with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Employee an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by Employee from the Executive Gross-Up Payment of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive Employee retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the ExecutiveEmployee’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes in the state and locality in which Employee is subject to taxation at the highest marginal rate of taxation in each state and locality for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Employee’s adjusted gross income. Notwithstanding the foregoing provisions of this Appendix A, if it shall be determined that Employee is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 10% of the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code, then the amounts payable to Employee under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Employee without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Employee. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing any cash payments, unless an alternative method of reduction is elected by Employee. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any affiliated entity) or any entity that effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if itshall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as “parachute payments” under Section 28OG of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(ii), unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything (a) Subject to Section 8(f), anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its Affiliates) or any entity which effectuates a Change in Control (or any of its Affiliates) 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, (including but determined without regard to any additional payments required under this Section 5.715) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest actual marginal rates of federal income taxation applicable to Executive for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest actual marginal rate of taxation applicable to Executive for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Notwithstanding the foregoing provisions of this Section 15(a), if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than 5% of the portion of the Payments that would be treated as ‘parachute payments’ under Section 280G of the Code, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the payments under Section 8(c)(i) in the following order: first, the payments under clause (A), second, the payments under clause (E), and third, all other payments ratably. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. Anything 20. In the event that it is determined (as hereinafter provided) that any payment (other than the Gross-Up Payments provided for in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, paragraph 20 and Annex A) or distribution or other action by the Company Company, AGI or any of its affiliates to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation the lapse or termination of any additional payments required restriction on the vesting or exercisability of any benefit under this Section 5.7) any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control," within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by U.S. state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive will be entitled to receive an additional payment or payments (collectively, a “"Gross-Up Payment”) "). The Gross-Up Payment will be in an amount such that that, after payment by the Executive of all U.S. taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed considered to (i) pay federal any applicable U.S. federal, state and local income taxes at the highest marginal rates of federal income taxation for rate applicable to the calendar Executive in effect in the year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to will be made, net of the maximum reduction in U.S. federal income taxes which tax that could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any affiliated entity) or any entity that effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.75) (a the “PaymentPayments”) would be subject to an the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”)4999, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a pay to Executive an additional payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments Payments, and (yii) the product of any deductions disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made. Such Gross-Up Payment will be made at the same time payment is made to the Executive pursuant to Section 4(a)(ii). For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (iA) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up up Payment is to be made, and (iiB) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to the Gross-up Payment. Notwithstanding the foregoing provisions of this Section 5(a), if Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if the Payments were reduced by an amount that is less than five percent of the portion of the Payments that would be treated as “parachute payments” under Code Section 28OG, then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Section 4(a)(ii). For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event that a Change of Control occurs prior to January 1, 2003, and it shall be determined that that, as a result of such Change of Control, any payment, distribution or other action 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, (including any additional payments required under this Section 5.75.6) (a “Payment”) would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), the Company shall make a payment to the Executive (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Gross- - 11 - Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, distribution or other action by the Company to or for the benefit of the Executive (Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, (including but determined without regard to any additional payments required under this Section 5.716) (each a “"Payment”) "), would be subject to an excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to the Executive (a “"Gross-Up Payment”") in an amount such that after payment by the Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and Payments, PLUS (y) the product of (i) any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income and income, MULTIPLIED BY (ii) the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. (a) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or other action any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) 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, (including but determined without regard to any additional payments required under this Section 5.76) (a “Payment”) would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “Excise Tax”), then the Company shall make a payment to pay the Executive 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 and employment taxes (and any interest and penalties imposed with respect thereto) and any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes.

Certain Additional Payments by the Company. a. Anything (a) Notwithstanding anything in this Agreement to the contrary notwithstandingcontrary, in the event it shall be determined that any payment, payment or distribution or other action by the Company, by any affiliate of the Company or by any person whose actions result in a change in control of the Company (to the extent the Company approves of the arrangements pursuant to which the payment by such person is made to the Executive) 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, (including but determined without regard to any additional payments required under this Section 5.76) (a “"Payment”") would be subject to an the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise tax, together with any such interest and penalties, are hereafter hereinafter collectively referred to as the “"Excise Tax”"), the Company shall make a payment to then the Executive 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 and employment taxes and Excise Tax) , imposed upon the Gross-Up PaymentPayment but before deduction for any federal, state or local income or other tax upon the Payments, the Executive retains (or has had paid to the Internal Revenue Service on his behalf) an will retain a net amount of the Gross-Up Payment equal to the sum of (xi) the Excise Tax imposed upon the Payments and (yii) an amount equal to the product of any deductions (or portions thereof) disallowed because of the inclusion of the Gross-Up Payment in the Executive’s 's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up GrossUp Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, and (ii2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxestaxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income.

Certain Additional Payments by the Company. a. Anything 18. In the event that it is determined (as hereinafter provided) that any payment (other than the Gross-Up Payments provided for in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, paragraph 18 and Annex A) or distribution or other action by the Company or any of its affiliates to or for the benefit of the Executive (Chairman, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise pursuant to or by reason of any other agreement, (policy, plan, program or arrangement, including without limitation the lapse or termination of any additional payments required restriction on the vesting or exercisability of any benefit under this Section 5.7) any of the foregoing (a “"Payment”) "), would be subject to an the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended (the “"Code”") (or any successor provision thereto), by reason of being considered "contingent on a change in ownership or control" of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by U. S. state or local law, or any interest or penalties are incurred by the Executive with respect to any such excise tax (such excise taxtax or taxes, together with any such interest and penalties, are being hereafter collectively referred to as the “"Excise Tax”"), then the Company shall make Chairman will be entitled to receive an additional payment or payments (collectively, a payment to the Executive (a “"Gross-Up Payment”) "). The Gross-Up Payment will be in an amount such that that, after payment by the Executive Chairman of all U. S. taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax) Tax imposed upon the Gross-Up Payment, the Executive Chairman retains (or has had paid to the Internal Revenue Service on his behalf) an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be madePayment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall Chairman will be deemed considered to (i) pay federal any applicable U. S. federal, state and local income taxes at the highest marginal rates of federal income taxation for rate applicable to the calendar Chairman in effect in the year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to will be made, net of the maximum reduction in U. S. federal income taxes which tax that could be obtained from deduction of such state and local taxes.