Common use of Excise Tax Gross-Up Payment Clause in Contracts

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, after payment by Grantee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in Executive by the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (ia) In the event that it shall be is determined that any payment or distribution to Grantee or for Grantee's the benefit which is in of Executive under the nature terms of compensation and is contingent on a change in the ownership this Agreement, or effective control of the Company under any other agreement, plan or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement arrangement with Employer (a "“Payment"”), would be subject (in whole or in part) to the any excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended, or any comparable provision of state or local law (together with any interest or penalties imposed with respect to such excise tax, the "an “Excise Tax"”), then Grantee Employer agrees that it shall pay to Executive, in addition to any other payments required to be entitled made pursuant to receive this Agreement, an additional payment cash amount (the "Excise Tax a “Gross-Up Payment"”) in an equal to the sum of (i) the amount of such thatExcise Tax plus (ii) all Attributable Taxes and Penalties. For purposes of this Agreement, after payment by Grantee of “Attributable Taxes and Penalties” means all taxes (taxes, interest and any interest or penalties imposed with respect to such taxes)penalties, including, without limitation, any federal, state and local income taxes and any Excise Tax imposed upon the Excise Tax Gross-Up PaymentTaxes, Grantee retains an amount which become payable by Executive as a result of the Excise Tax receipt of the Gross-Up Payment equal to or the assessment of any Excise Tax imposed upon against Executive. It is intended that under this provision Employer shall indemnify Executive in such a manner that Executive shall not suffer any loss or expense by reason of the Paymentsassessment of any Excise Tax or the reimbursement of Executive for payment of any such Excise Tax. The CompanyEmployer’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) 7 shall not be conditioned upon Grantee's Separation from Service. For purposes Executive’s termination of employment. (b) In determining the amount of any Excise Tax Gross-Up PaymentPayment payable pursuant to subsection (a) above, Grantee Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual the highest marginal rate rates of taxation for such year in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculatedExecutive’s residence. For such purposes, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which shall be determined net of the maximum reduction in such federal income taxes that could be obtained from the deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law. (iic) Within 30 days after Executive provides written notice to Employer that there has been a Payment, a nationally recognized accounting firm selected by Employer (“Accounting Firm”) shall make a determination as to whether any Excise Tax should be reported and paid by Executive, and if applicable, the amount of such Excise Tax and the related Gross-Up Payment. Employer shall pay the amount of such Gross-Up Payment to Executive, and Executive shall report and pay such Excise Tax as provided in Section 7(f). Employer shall be responsible for all fees and expenses connected with the determinations by the Accounting Firm. All determinations required to be made under this Section 8(n)7, including whether and when an Excise Tax a Gross-Up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within . (d) In the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination event that Executive is at any time required to pay any Excise Tax (the "Determination"or any related interest or penalties) in addition to any amount determined pursuant to subsection (c), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm Employer shall be borne solely by the Company. Any Excise Tax pay Executive a Gross-Up Payment, as Payment determined with respect to such additional Excise Tax (and any such additional interest and penalties) pursuant to the same notice and calculation procedures outlined in subsection (c). In the event that Executive receives any refund of any Excise Tax with respect to which Executive has previously received a Gross-Up Payment hereunder, Executive shall promptly pay to Employer the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (e) Executive agrees to notify Employer in the event of any audit or other proceeding by the IRS or any taxing authority in which the IRS or other taxing authority asserts that any Excise Tax should be assessed against Executive and to cooperate with Employer in contesting any such proposed assessment with respect to such Excise Tax (a “Proposed Assessment”). Executive agrees not to settle any Proposed Assessment without the consent of Employer. If Employer does not settle the Proposed Assessment, or does not consent to allow Executive to settle the Proposed Assessment, within 30 days following such demand therefor, Employer shall indemnify and hold harmless Executive (i) with respect to any additional interest and/or penalties that Executive is required to pay by reason of the delay in finally resolving Executive’s tax liability, (ii) with respect to any taxes, interest and penalties that Executive is required to pay by reason of any indemnification payment under this Section 8(nsubsection (e), and (iii) all costs and expenses incurred by Executive in connection with such audit or proceeding. (f) Any Gross-Up Payment shall be paid by the Company to you no later than the later Employer within 30 calendar days of (i) 15 business days following the receipt of the Accounting Firm’s Determination determination as described in this Section 7, or (ii) 15 business such later date as provided in Section 14, provided that Executive submits written notice of a Payment no later than 75 calendar days preceding prior to the date end of the calendar year next following the calendar year in which the Excise Tax becomes payable; providedon a Payment is remitted to the Internal Revenue Service or any other applicable taxing authority, however, so that in no event shall any such Excise Tax Employer can make the payment within the time period required by Section 409A of the Code. The Gross-Up Payment Payment, if any, shall be paid to the Executive; provided that Employer, in its sole discretion, may withhold and pay over to the Internal Revenue Service or any payment other applicable taxing authority, for the benefit of the Executive, all or any portion of any income or other taxes Gross-Up Payment, and the Executive hereby consents to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxessuch withholding. Any costs and reimbursement or payment by Employer of expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any Executive in connection with a tax contest, audit or litigation will relating to the Excise Tax, as provided for in this Section 7, shall be paid within 30 calendar days of written request by the Company by Executive, or such later date as provided in Section 14, provided that Executive submits the written request no later than 75 calendar days prior to the end of Grantee's taxable the calendar year following Grantee's taxable the calendar year in which the taxes Excise Taxes that are subject to the subject of the tax contest, audit or litigation are remitted to the Internal Revenue Service or any other applicable taxing authority, or where as a result of such tax contest, the audit or litigation litigation, no taxes Excise Taxes are remitted, the end of Grantee's taxable the calendar year next following Grantee's taxable the calendar year in which the audit is completed or there is a final and non-appealable nonappealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require so that Employer can make the payment within the time period required by the Company Section 409A of the Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestCode.

Excise Tax Gross-Up Payment. (i) In If the event it shall be determined that total of all payments made to the Employee pursuant to this Agreement, together with any payment or distribution other payments which the Employee has a right to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of receive from the Company (within or any affiliates or subsidiaries of the meaning Company) result in the imposition of an excise tax under Section 280G(b)(24999 (or any successor thereto) of the Code)Internal Revenue Code of 1986, paid or payable pursuant to this Agreement (a "Payment")as amended, would be subject (in whole or in part) to the Company shall pay the Employee an additional excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional adjustment payment (the "Excise Tax Gross-Up Payment") in an amount such that, after the payment by Grantee of all taxes federal and state income and excise taxes, the Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Section 280G or 4999 (and or any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount successor provisions thereto) of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For Internal Revenue Code for purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee whether an excise tax is payable shall be considered deemed a payment "made to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in Employee" or a payment "which the Excise Tax Gross-Up Payment is Employee has a right to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, receive" for purposes of this Section 8(n), net provision. The Company shall be responsible for the cost of Grantee's actual reduction in federal income taxes which could be obtained from deduction calculation of such state the excise tax by its independent certified accountant and local taxes, tax counsel and taking into consideration shall notify the phase-out Employee of Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately excise tax due prior to the change in control transaction (the "Accounting Firm"), provided, time such excise tax is due. If at any time it is determined that the Accounting Firm’s determination shall be additional excise tax adjustment payment previously made based upon "substantial authority" within to the meaning of Section 6662 Employee was insufficient to cover the effect of the Code. The Accounting Firm shall provide its determination (excise tax, the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Grossexcise tax gross-Up Payment, as determined up payment pursuant to this Section 8(n), provision shall be paid by increased to make the Company Employee whole, including an amount to you no later than cover the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income penalties resulting from incorrect or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject late payment of the excise tax contest, audit or litigation are remitted to resulting from the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationprior calculation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which If Executive’s employment is in the nature of compensation and is contingent on a change in the ownership or effective control of terminated by the Company or the ownership of without Cause after a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be Change in Control and Executive becomes subject (in whole or in part) to the excise tax imposed by Internal Revenue Code (“Code”) Section 4999 of (the Code (together with any interest or penalties imposed “Parachute Excise Tax”) with respect to any amounts paid or payable to Executive under this Agreement, then the Company and Executive agree that: (a) If the aggregate of all “parachute payments” (as such excise tax, term is used under Code Section 280G) exceeds 300% of the "Excise Tax"“base amount” (as such term is used under Code Section 280G), then Grantee the Company shall be entitled pay to receive an additional Executive a tax gross-up payment (the "Excise Tax Gross-Up Payment") in an amount such that, so that after payment by Grantee or on behalf of Executive of all federal, state and local excise, income, employment, Medicare and any other taxes (including any related penalties and any interest or penalties imposed with respect interest) resulting from the payment of the parachute payments and the tax gross-up payments to such taxes)Executive by the Company, including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax GrossExecutive retains on an after-Up Payment, Grantee retains tax basis an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall amount that Executive would have retained if Executive had not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be been subject to the Parachute Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Grossthe Company’s maximum tax gross-Up Payment or any up payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation10 shall not exceed $5,000,000. (iiib) Grantee The computation of the excess parachute payment in accordance with Code Section 280G shall immediately be done by a nationally recognized and reputable independent accounting or valuation firm selected and paid for by the Company. (c) 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 any tax gross-up payments. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise the Excise Tax Gross-Up PaymentCompany of the nature of such claim and the date on which such claim is requested to be paid. Grantee Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee Executive in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall Executive shall: (i) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee Executive harmless, on an after-tax basis, for any Excise Tax excise tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a gross-up payment would be payable hereunder and 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. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of this Section 10) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of gross-up payment required to be paid.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which If Executive’s employment is in the nature of compensation and is contingent on a change in the ownership or effective control of terminated by the Company or the ownership of without Cause within 18 months after a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be Change in Control and Executive becomes subject (in whole or in part) to the excise tax imposed by IRC Section 4999 of (the Code (together with any interest or penalties imposed “Parachute Excise Tax”) with respect to any amounts paid or payable to Executive under this Agreement, then the Company and Executive agree that: (a) If the aggregate of all “parachute payments” (as such excise tax, term is used under IRC Section 280G) does not exceed 320% of the "Excise Tax"“base amount” (as such term is used under IRC Section 280G), then Grantee the parachute payment shall be entitled reduced to receive an additional 299.99% of such base amount; (b) If the aggregate of all parachute payments exceeds 320% of the base amount, then the Company shall pay to Executive a tax gross-up payment (the "Excise Tax Gross-Up Payment") in an amount such that, so that after payment by Grantee or on behalf of Executive of all federal, state and local excise, income, employment, Medicare and any other taxes (including any related penalties and any interest or penalties imposed with respect interest) resulting from the payment of the parachute payments and the tax gross-up payments to such taxes)Executive by the Company, including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax GrossExecutive retains on an after-Up Payment, Grantee retains tax basis an amount of the Excise Tax Gross-Up Payment equal to the amount that Executive would have retained if Executive had not been subject to the Parachute Excise Tax imposed upon Tax; (c) The computation of the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this excess parachute payment in accordance with IRC Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee 280G shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in done by a nationally recognized and reputable independent accounting or valuation firm selected and paid for by the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax lawCompany. (iid) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, Executive shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any tax gross-up payments. Such notification shall be given as soon as practicable but no later than ten business days after Executive is informed in writing of such claim and shall apprise the Excise Tax Gross-Up PaymentCompany of the nature of such claim and the date on which such claim is requested to be paid. Grantee Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee Executive in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall Executive shall: (i) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee Executive harmless, on an after-tax basis, for any Excise Tax excise tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6, 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 Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a gross-up payment would be payable hereunder and 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. (e) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 6, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of this Section 6) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 6, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of gross-up payment required to be paid.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. imposed on the Gross- Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (ii) All determinations required to including by reason of any payment the existence or amount of which cannot be made under this Section 8(ndetermined at the time of the Gross- Up Payment), including whether and when the Company shall make an Excise Tax additional Gross-Up Payment is requiredin respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Codeexcess is finally determined. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee Executive and the Company within 15 business days following shall each reasonably cooperate with the date other in connection with any administrative or judicial proceedings concerning the existence or amount of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any liability for Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. Mattel recognizes that the Executive will receive, as a result of the Merger, payments (ior benefits) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is that are contingent on a change in the ownership or effective control of the The Learning Company or the ownership of a substantial portion of the assets of the Company (and that may constitute "parachute payments" within the meaning of Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, (the "Code), paid or payable pursuant to this Agreement ") (a "PaymentChange of Control Payments"), would and that such payments may be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with Code. Mattel agrees to pay immediately to the Executive upon receipt of any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive Change of Control Payments an additional payment amount (the "Excise Tax Gross-Up Paymentup payment") equal to the sum of (x) the excise tax imposed on the Change in an amount such thatControl Payments, after payment by Grantee of all (y) the excise tax imposed on the Gross-up payment, and (z) the federal, state and local income taxes (imposed upon the Gross-up payment, and any interest or and penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax thereon. The Gross-Up Payment, Grantee retains an amount up payment shall place the Executive in the same after-tax financial position in which he would have been if he had not incurred any tax liability under Section 4999 of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from ServiceCode. For purposes of determining the amount of any Excise Tax the Gross-Up Paymentup payment, Grantee the Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment up payment is to be made, made and state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and the locality of Granteethe Executive's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)termination, net of Grantee's actual the maximum reduction in federal income taxes which could can be obtained from the deduction of such state and local taxes, and taking into consideration . In the phase-out of Grantee's itemized deductions under federal income event that the excise tax law. (ii) All determinations required is subsequently determined to be made under this Section 8(n)less than the amount taken into account hereunder at the time the Change of Control Payments are made, including whether and when an Excise Tax Gross-Up Payment is required, the Executive shall repay to Mattel at the time that the amount of such Excise Tax reduction and excise tax is finally determined, the portion of the Gross-Up Payment up payment attributable to such reduction (plus the portion of the Gross-up payment attributable to the excise tax and federal, state, and local income tax imposed on the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected Gross-up payment being repaid by the Board as constituted immediately prior to Executive, if such repayment results in a reduction in excise tax or in federal, state, and local income tax deductions) plus interest on the change amount of such repayment at the rate provided in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 1274(d) of the Code. The Accounting Firm shall provide its determination In the event that the excise tax is determined to exceed the amount taken into account hereunder at the time the Change of Control Payments are made (including by reason of any payment the "Determination"existence or amount of which cannot be determined at the time the Gross-up payment is made), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm Mattel shall be borne solely by the Company. Any Excise Tax make an additional Gross-Up Payment, as determined pursuant up payment in respect to this Section 8(n), shall be paid by the Company to you no later than the later of such excess (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall plus any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes interest payable with respect to such claim is due). If excess) at the Company notifies Grantee in writing prior to time that the expiration amount of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestexcess is finally determined.

Excise Tax Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment payments or distribution benefits from the Corporation to Grantee you or for Grantee's your benefit which is in the nature connection with a Change of compensation and is contingent on a change in the ownership Control or effective control your termination of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code)employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a such payments or benefits, excluding the Gross-up Payment (as defined below), being hereinafter referred to as the "PaymentTotal Payments"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with or any interest or penalties imposed with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Grantee you shall be entitled to receive an additional payment (the a "Excise Tax Gross-Up Gross- up Payment") in an amount such thatthat the net amount retained by you, after payment by Grantee deduction of all taxes (any Excise Tax on the Total Payments and any interest or penalties imposed with respect to such taxes)Federal, including, without limitation, any state and local income and employment taxes and Excise Tax imposed upon the Excise Tax Gross-Up up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment shall be equal to the Excise Tax imposed upon the Total Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (iib) All Subject to the Provisions of Section 5(c), all determinations required to be made under this Section 8(n)5, including whether and when an Excise Tax a Gross-Up up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determinationup Payment, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction Arthur Andersen LLP (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm which shall provide its determination (the "Determination"), together with detailed xxxxxled supporting calculations both to the Corporation and documentation, to Grantee and the Company you within 15 business days following the date after a Change of termination Control or your Date of Termination, if applicable, or such other earlier time as is requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the CompanyCorporation. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax The initial Gross-Up up Payment, if any, as determined pursuant to this Section 8(n5(b), shall be paid by the Company to you no later than the later within 5 days of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding 's determination. If the date the Accounting Firm determines that no Excise Tax becomes payable; providedis payable by you, howeverit shall furnish you with an opinion that you have substantial authority not to report any excise tax on your Federal income tax return. Any determination by the Accounting Firm shall be binding upon the Corporation and you. 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 in no event shall any such Excise Tax Gross-Up Payment or any up Payments that will not have been made by the Corporation should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Corporation exhausts its remedies pursuant to Section 5(c) and you thereafter are required to make a payment of any income or other taxes to 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 under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due Corporation to any tax contest, audit you or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationfor your benefit. (iiic) Grantee You shall immediately notify the Company Corporation in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company Corporation of the Excise Tax Gross-Up up Payment. Grantee Such notification shall be given as soon as practicable but no later than 10 business days after you know of such claim and shall apprise the Corporation of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives you give such notice to the Company Corporation (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company Corporation notifies Grantee you in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall you shall: (i) give the Company all Corporation any information reasonably requested by the Company Corporation relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company Corporation shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Corporation, (iii) cooperate with the Corporation in good faith in order effectively to contest such claim, and (iv) permit the Company Corporation to participate in and control any proceedings relating to such claim; provided, however, that the Company Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee you harmless, on an after-tax basis, for any Excise Tax or income tax (tax, including interest and penalties) penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5(c), the Corporation 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 you to pay the tax claimed and sue for a refund or contest the claim in any permixxxble manner, and you agree 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 Corporation shall determine; provided further, however, that if the Corporation directs you to pay such claim and sue for a refund, the Corporation shall advance thx xmount of such payment to you, on an interest-free basis, and shall indemnify and hold you 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 your taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Corporation's control of the contest shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder and you 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 you of an amount advanced by the Corporation pursuant to Section 5(c), you become entitled to receive any refund with respect to such claim, you shall (subject to the Corporation's complying with the requirements of Section 5(c)) promptly pay to the Corporation the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by you of an amount advanced by the Corporation pursuant to Section 5(c), a determination is made that you are not entitled to any refund with respect to such claim and the Corporation does not notify you in writing of its intent to contest such denial or refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-up Payment required to be paid.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be become subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee shall be entitled to receive the Company shall, as soon as reasonably practicable thereafter, make an additional cash payment to the Executive (the "Excise Tax Gross-Up Payment") in an amount such thatthat the net amount retained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal Payments. The determination of whether any Payments are subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiciton in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a 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. In the event that the Excise Tax is determined to exceeed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding anything contained herein, if it shall be determined that you are entitled to the Excise Tax Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to 2.99 times your “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date of the change in control transaction of all Payments actually made to you. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in control transaction for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) 8 shall not be conditioned upon Grantee's Separation your termination of employment or your “separation from Serviceservice” (within the meaning of Section 409A(a)(2)(A)(i) of the Code). For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee you shall be considered to pay federal income tax at Grantee's your actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, made and state and local income taxes at Grantee's your actual marginal rate of taxation in the state and locality of Grantee's your residence on the date on which the Excise Tax Gross-Up Payment is calculated, calculated for purposes of this Section 8(n)8, net of Grantee's your 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 Grantee's your itemized deductions under federal income tax law. (iib) All determinations required to be made under this Section 8(n)8, including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board of Directors of the REIT as constituted immediately prior to the change in control transaction (the "“Accounting Firm"”), provided, that the Accounting Firm’s determination shall be made based upon "“substantial authority" ” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Grantee you and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee you reasonably believes believe that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n)8, shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) 8 be made later than the end of Grantee's your taxable year next following Grantee's your taxable year in which Grantee remits you remit the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee you under this Section 8(n) 8 due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's your taxable year following Grantee's your taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's your taxable year following Grantee's your taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iiic) Grantee You shall immediately 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 Excise Tax Gross-Up Payment. Grantee You shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee you in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee you shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which If Executive’s employment is in the nature of compensation and is contingent on a change in the ownership or effective control of terminated by the Company or the ownership of without Cause within 18 months after a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be Change in Control and Executive becomes subject (in whole or in part) to the excise tax imposed by Internal Revenue Code (“Code”) Section 4999 of (the Code (together with any interest or penalties imposed “Parachute Excise Tax”) with respect to any amounts paid or payable to Executive under this Agreement, then the Company and Executive agree that: (a) If the aggregate of all “parachute payments” (as such excise tax, term is used under Code Section 280G) exceeds 300% of the "Excise Tax"“base amount” (as such term is used under Code Section 280G), then Grantee the Company shall be entitled pay to receive an additional Executive a tax gross-up payment (the "Excise Tax Gross-Up Payment") in an amount such that, so that after payment by Grantee or on behalf of Executive of all federal, state and local excise, income, employment, Medicare and any other taxes (including any related penalties and any interest or penalties imposed with respect interest) resulting from the payment of the parachute payments and the tax gross-up payments to such taxes)Executive by the Company, including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax GrossExecutive retains on an after-Up Payment, Grantee retains tax basis an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall amount that Executive would have retained if Executive had not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be been subject to the Parachute Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Grossthe Company’s maximum tax gross-Up Payment or any up payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation10 shall not exceed $5,000,000. (iiib) Grantee The computation of the excess parachute payment in accordance with Code Section 280G shall immediately be done by a nationally recognized and reputable independent accounting or valuation firm selected and paid for by the Company. (c) 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 any tax gross-up payments. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Excise Tax Gross-Up PaymentCompany of the nature of such claim and the date on which such claim is requested to be paid. Grantee Executive shall not pay such claim prior to the expiration of the 30-day thirty (30)-day period following the date on which Grantee Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee Executive in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall Executive shall: (i) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee Executive harmless, on an after-tax basis, for any Excise Tax excise tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, 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 Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and sxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a gross-up payment would be payable hereunder and 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. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of this Section 10) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of gross-up payment required to be paid.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or --------------------------- benefits provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (ia) In the event that it shall be is determined that any payment or distribution to Grantee or for Grantee's the benefit which is in of Executive under the nature terms of compensation and is contingent on a change in the ownership this Agreement, or effective control of the Company under any other agreement, plan or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment")arrangement with Employer, would be subject (in whole or in part) to the any excise tax imposed by pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended, or any comparable provision of state or local law (together with any interest or penalties imposed with respect to such excise tax, the "an “Excise Tax"”), then Grantee Employer agrees that it shall promptly pay to Executive, in addition to any other payments required to be entitled made pursuant to receive this Agreement, an additional payment cash amount (the "Excise Tax a “Gross-Up Payment"”) in an equal to the sum of (i) the amount of such thatExcise Tax plus (ii) all Attributable Taxes and Penalties. For purposes of this Agreement, after payment by Grantee of “Attributable Taxes and Penalties” means all taxes (taxes, interest and any interest or penalties imposed with respect to such taxes)penalties, including, without limitation, any federal, state and local income taxes and any Excise Tax imposed upon the Excise Tax Gross-Up PaymentTaxes, Grantee retains an amount which become payable by Executive as a result of the Excise Tax receipt of the Gross-Up Payment equal to or the assessment of any Excise Tax imposed upon against Executive. It is intended that under this provision Employer shall indemnify Executive in such a manner that Executive shall not suffer any loss or expense by reason of the Payments. The Company’s obligation to make assessment of any Excise Tax Gross-Up Payments under this Section 8(nor the reimbursement of Executive for payment of any such Excise Tax. (b) shall not be conditioned upon Grantee's Separation from Service. For purposes of In determining the amount of any Excise Tax Gross-Up PaymentPayment payable pursuant to subsection (a) above, Grantee Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual the highest marginal rate rates of taxation for such year in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculatedExecutive’s residence. For such purposes, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which shall be determined net of the maximum reduction in such federal income taxes that could be obtained from the deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law. (iic) All determinations required Within 30 days after Executive’s termination of employment, a nationally recognized accounting firm selected by Employer shall make a determination as to be made under this Section 8(n), including whether and when an any Excise Tax Gross-Up Payment is requiredshould be reported and paid by Executive, and if applicable, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee Within 30 days after such determination, Employer shall not pay the amount of such Gross-Up Payment to Executive, and Executive shall report and pay such claim prior Excise Tax. Employer shall be responsible for all fees and expenses connected with the determinations by the accounting firm pursuant to this Section 7. (d) In the expiration of the 30-day period following the date on which Grantee gives such notice event that Executive is at any time required to the Company pay any Excise Tax (or such shorter period ending on the date that any payment of taxes related interest or penalties) in addition to any amount determined pursuant to subsection (c), Employer shall pay Executive a Gross-Up Payment determined with respect to such claim is dueadditional Excise Tax (and any such additional interest and penalties). If In the Company notifies Grantee in writing prior event that Executive receives any refund of any Excise Tax with respect to which Executive has previously received a Gross-Up Payment hereunder, Executive shall promptly pay to Employer the expiration amount of such period that refund (together with any interest paid or credited thereon after taxes applicable thereto). (e) Executive agrees to notify Employer in the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested event of any audit or other proceeding by the Company relating IRS or any taxing authority in which the IRS or other taxing authority asserts that any Excise Tax should be assessed against Executive and to cooperate with Employer in contesting any such proposed assessment with respect to such claimExcise Tax (a “Proposed Assessment”). Executive agrees not to settle any Proposed Assessment without the consent of Employer. If Employer does not settle the Proposed Assessment, cooperate with or does not consent to allow Executive to settle the Company and take Proposed Assessment, within 30 days following such action in connection with contesting such claim as the Company shall reasonably request in writing from time to timedemand therefor, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and Employer shall indemnify and hold Grantee harmlessharmless Executive (i) with respect to any additional interest and/or penalties that Executive is required to pay by reason of the delay in finally resolving Executive’s tax liability and (ii) with respect to any taxes, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result penalties that Executive is required to pay by reason of such representation and contestany indemnification payment under this subsection (e).

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when Company shall make an Excise Tax additional Gross-Up Payment is requiredin respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Codeexcess is finally determined. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee Executive and the Company within 15 business days following shall each reasonably cooperate with the date other in connection with any administrative or judicial proceedings concerning the existence or amount of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any liability for Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. In the event that Employee becomes entitled to severance benefits as provided under Section 6 or the Change-in-Control Payment or Performance Bonus provided in this Schedule B (collectively referred to as “severance payments”) and such severance payments are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”), or any other similar tax that may hereafter be imposed, the Employer shall pay to Employee in cash an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Employee after deduction of (i) In any Excise Tax and (ii) any federal, state, and/or local income tax and Excise Tax incurred on the event it Gross-Up Payment shall be determined equal to an amount such that the Excise Tax payable and any payment additional income taxes incurred on the Gross-Up Payment will be apportioned 75% to the Employer and 25% to the Employee. For purposes of determining whether the severance payments will be subject to the Excise Tax and the amounts of such Excise Tax: (a) Any payments or distribution benefits received or to Grantee or for Grantee's benefit which is be received by Employee in the nature connection with a Change-in-Control of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (FTC shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Internal Revenue Code (“Code”), paid and all “excess parachute payments” within the meaning of Code Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by FTC’s independent auditors and acceptable to Employee, such other payments or payable pursuant to this Agreement (a "Payment"), would be subject benefits (in whole or in part) do not constitute parachute payments, or unless such excess parachute payments represent reasonable compensation for services actually rendered within the meaning of Code Section 280G(b)(4) in excess of the base amount within the meaning of Code Section 280G(b)(3), or are otherwise not subject to the excise tax imposed by Section 4999 of the Code tax; (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional payment (the "Excise Tax Gross-Up Payment"b) in an amount such that, after payment by Grantee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an The amount of the Excise Tax Gross-Up Payment equal severance payments which shall be treated as subject to the Excise Tax imposed upon shall be equal to the Paymentslesser of (1) the total amount of the severance payments; or (2) the amount of excess parachute payments within the meaning of Code Section 280G(b)(1) (after applying clause [a] above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by Employer’s independent auditors in accordance with the principles of Code Sections 280G(d)(3) and (4). The Companybase amount shall be determined by Employer’s obligation to make Excise Tax Gross-Up Payments under this independent auditors in accordance with the principles of Code Section 8(n) shall not be conditioned upon Grantee's Separation from Service280G(d)(3). For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee Employee shall be considered deemed to pay be paying federal income tax taxes at Grantee's actual the highest marginal rate of for federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and any state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and locality of Grantee's as Employee’s residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes Effective Date of this Section 8(n)employment, net of Grantee's actual the maximum reduction in federal income taxes taxes, which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (ia) In If it is determined under this Section 19 that any Payment would be subject to the event it shall Excise Tax, the Executive will be entitled to a Gross-Up Payment determined that under this Section 19. (1) For purposes of this Section 19, a “Payment” is any payment or distribution by the Company or any of its affiliates to Grantee or for Grantee's the benefit which of the Executive, whether paid or payable or distributed or distributable under this Agreement or under any other agreement, policy, plan, program or arrangement, including without limitation any stock option, 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. (2) For purposes of this Section 19, the “Excise Tax” is in the nature of compensation and is excise tax imposed by Code Section 4999 (or any successor provision) as a payment “contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets control” of the Company (within the meaning of under Code Section 280G(b)(2) of the Code280G or any successor provision), paid or payable pursuant to this Agreement (a "Payment"), would be subject (in whole or in part) to the excise any similar tax imposed by Section 4999 of the Code (together with state or local law, and any related interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional payment penalties. (the "Excise Tax b) The Gross-Up Payment") in Payment will be an amount such that, after payment by Grantee the Executive of all taxes (and including any related interest or penalties imposed with respect to such taxespenalties), including, without limitation, including any income taxes and Excise Tax imposed upon on the Excise Tax Gross-Up Payment, Grantee the Executive retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax lawPayment. (iic) All Subject to Section 19(k), all determinations required to be made under this Section 8(n)19, including including: (1) whether and when an Excise Tax is payable by the Executive; (2) the amount of the Excise Tax; (3) whether a Gross-Up Payment is required, required to be paid by the Company to the Executive; and (4) the amount of the Gross-Up Payment, if any, will be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Company in the Company’s sole discretion. The Executive will direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and the Executive within 30 calendar days after the Termination Date and any such other time or times as may be requested by the Company or the Executive. (d) If the Accounting Firm determines that any Excise Tax is payable by the Executive, the Company will pay the required Gross-Up Payment to the Executive as required under Section 4(a). (e) If the Accounting Firm determines that no Excise Tax is payable by the Executive, it will, at the same time as it makes its determination, furnish the Company and the assumptions Executive an opinion that the Executive has substantial authority not to be utilized report any Excise Tax on the Executive’s federal, state or local income or other tax return. (f) Because of the uncertainty in arriving the application of Code Section 4999 (or any successor provision) and the possibility of similar uncertainty regarding applicable state or local tax law at such determinationthe time of any determination by the Accounting Firm under this Section 19, shall be it is possible that Gross-Up Payments which will not have been made by such nationally recognized accounting firm the Company should have been made (an “Underpayment”). If the Company exhausts or fails to pursue its remedies under Section 19(k) and the Executive is subsequently required to make a payment of any Excise Tax, the Executive will direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to promptly submit its determination and detailed supporting calculations to both the Company and the Executive. The Company will pay any Underpayment to, or for the benefit of, the Executive as may be selected required under Section 4(a). (g) The Company and the Executive will each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or the Executive, as applicable, reasonably requested by the Board Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations required under this Section 19. The Executive will cooperate with reasonable requests made by the Company, whether directly or through the Accounting Firm, to assist in appropriate tax planning to minimize the Excise Tax payable. Any determination by the Accounting Firm as constituted immediately to the amount of the Gross-Up Payment is binding on the Company and the Executive. (h) The Executive will prepare and file the Executive’s federal, state and local income or other tax returns on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive will make timely payment of the amount of any Excise Tax. At the request of the Company, the Executive will provide to the Company true and correct copies (with any amendments) of the Executive’s federal income tax return as filed with the Internal Revenue Service, corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and any other documents reasonably requested by the Company evidencing the Executive’s payment. (i) If prior to the change in control transaction (filing of the "Executive’s federal income tax return or corresponding state or local tax return, the Accounting Firm"), provided, Firm determines that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 amount of the Code. The Accounting Firm shall provide its determination (Gross-Up Payment should be reduced, the "Determination"), together with detailed supporting calculations and documentation, to Grantee and Executive will pay the Company the amount of the reduction within 15 five business days following if the date of termination if applicableCompany has already paid the Gross-Up Payment to the Executive. If the Company has not yet paid the Gross-Up Payment to the Executive, or such other time as requested by you (provided that Grantee reasonably believes that any the Company will reduce the amount of the Payments may be subject Gross-Up Payment paid to the Excise TaxExecutive by the amount of the reduction. (j) or the Company. All The fees and expenses of the Accounting Firm shall be borne solely by for its services in connection with the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company determinations and calculations under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation 19 will be paid by the Company Company. If the fees and expenses are initially paid by the end of Grantee's taxable year following Grantee's taxable year in which Executive, the taxes that are Company will reimburse the subject Executive the full amount of the tax contest, audit or litigation are remitted to fees and expenses within five business days after the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, Company receives the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final Executive’s written request for payment and non-appealable settlement or other resolution reasonable evidence of the contest or litigationExecutive’s payment of the fees and expenses. (iiik) Grantee shall immediately The Executive will notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of the Excise Tax a Gross-Up Payment. Grantee shall The Executive must give this notice as promptly as practicable but no later than 10 business days after the Executive actually receives notice of the claim. The Executive will also notify the Company of the nature of the claim and the date on which the claim is requested to be paid, to the extent known by the Executive. The Executive will not pay such the claim prior to the earlier of the expiration of the 30-calendar-day period following the date on which Grantee the Executive gives such the notice to the Company (or such shorter period ending on and the date that any payment of taxes with respect to such the claim is due). If the Company notifies Grantee the Executive in writing prior to the expiration of such this period that the Company desires wishes to contest such the claim, Grantee shall give the Executive will: (1) provide the Company all information with any written records or documents in the Executive’s possession relating to the claim that are reasonably requested by the Company relating to such claim, cooperate with the Company and Company; (2) take such any action in connection with contesting such the claim as the Company shall reasonably request requests in writing from time writing, including accepting legal representation with respect to time, the claim by an attorney competent in the subject matter and permit reasonably selected by the Company; (3) cooperate with the Company in good faith in order effectively to contest the claim; and (4) authorize the Company to participate in and control any proceedings relating to such the claim; provided, however, that the . The Company shall will bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest, contesting the claim and shall will indemnify and hold Grantee harmless the Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties, imposed as a result of the Company’s representation and payment of costs and expenses. The Company will control all proceedings taken in connection with the contest of any claim under this Section 19. At its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of the claim. The Executive may participate in any appeals, proceedings, hearings, or conferences at the Executive’s own cost and expense. The Company’s control of the contested claim will be limited to issues with respect to which a Gross-Up Payment would be payable under this Section 19. Any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which the contested amount is claimed to be due is limited solely to the contested amount. The Executive will be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The Company may, at its option, either direct the Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner. The Executive agrees to prosecute the contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company determines. If the Company directs the Executive to pay the tax claimed and sxx for a refund, the Company will advance the amount of the payment to the Executive on an interest-free basis and indemnify and hold the Executive harmless, on an after-tax basis, for from any Excise Tax or income tax (or other tax, including interest and or penalties, imposed with respect to the advance. (l) imposed as a result If after receiving an amount advanced by the Company under Section 19(k) the Executive receives any refund with respect to the claim, the Executive will (subject to the Company’s complying with the requirements of such representation and contestSection 19(k)) promptly pay to the Company the amount of the refund (together with any interest paid or credited on the refund less any income taxes applicable to the interest).

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement letter or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation Notwithstanding anything contained herein, if it shall be determined that you are entitled to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to pay federal income tax at Grantee's actual marginal rate 2.99 times your “base amount,” within the meaning of federal income taxation in Section 280G(b)(3) of the calendar year in which Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment is shall be made to you and the amounts payable under this letter shall be madereduced so that the Parachute Value of all Payments, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality aggregate, equals the Safe Harbor Amount. The reduction of Grantee's residence on the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date on which of the Excise Tax Gross-Up change in control transaction of all Payments actually made to you. For purposes of this letter, the “Parachute Value” of a Payment is calculated, shall mean the present value as of the date of the change in control transaction for purposes of this Section 8(n), net 280G of Grantee's actual reduction in federal income taxes which could be obtained from deduction the Code of the portion of such state and local taxes, and taking into consideration Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the phase-out of Grantee's itemized deductions under federal income tax lawCode. (iib) All determinations required to be made under this Section 8(n)11, including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Audit Committee of the Board as constituted immediately prior to the change in control transaction (the "“Accounting Firm"”), provided, that the Accounting Firm’s determination shall be made based upon "“substantial authority" ” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Grantee you and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee you reasonably believes believe that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n)11, shall be paid by the Company to you no later than on the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided. 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, however, it is possible that in no event shall any such Excise Tax Gross-Up Payment or any Payments that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 11(c) and you are thereafter required to make a payment of any income or other taxes to 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 under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit you or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationfor your benefit. (iiic) Grantee You shall immediately 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 Excise Tax Gross-Up Payment. Grantee You shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee you in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee you shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally determined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculated, for purposes attributable to such reduction (plus that portion of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is requiredattributable to the tax on the portion of the Gross-Up Payment being repaid, to the extent the repayment results in a reduction in tax) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall make an additional Gross-Up Payment and the assumptions in respect to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination")excess, together with detailed supporting calculations and documentationinterest, to Grantee and the Company within 15 business days following the date of termination if applicable, penalties or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely additions payable by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid Executive with respect thereto (and taxes payable by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where Executive as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax additional Gross-Up Payment) at the time such excess is finally determined. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to Executive and the Company (shall each reasonably cooperate with each other in connection with any administrative or such shorter period ending on judicial proceedings concerning the date that any payment existence or amount of taxes liability for Excise Tax with respect to such claim is due). If the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. (i) In the event If it shall be is determined that any payment payment, distribution, coverage or distribution benefit acceleration received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of be received by Xxxxxxx from the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement or otherwise (a "Payment"), collectively referred to as the “Payments”) would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect the “Code”), (such tax referred to such excise tax, as the "“Excise Tax"”), then Grantee Xxxxxxx shall be entitled to receive an additional payment from the Company (the "“Excise Tax Gross-Up Payment"”) in an amount such thatthat the net amount retained by Xxxxxxx, after payment by Grantee the calculation and deduction of all any Excise Tax on the Payments (together with any penalties and interest that have been or will be imposed on Xxxxxxx in connection therewith) and any federal, state or local income taxes, Excise Taxes and payroll taxes (and any interest or penalties including the tax imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon by Section 3101(b) of the Excise Tax Gross-Up Payment, Grantee retains an amount of Code) on the Excise Tax Gross-Up Payment provided for in this Section 3.5 shall be equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining In computing the amount of any Excise Tax Gross-Up Paymentthis payment, Grantee it shall be considered assumed that Xxxxxxx is subject to pay tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Xxxxxxx, taking into account the city and state in which Xxxxxxx resides, but giving effect to the tax benefit, if any, which Xxxxxxx may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax at Grantee's actual marginal rate purposes shall be determined under Section 1 of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(nCode), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) . All determinations required to be made under this Section 8(n)3.5, including whether and when an Excise Tax Gross-Up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, unless otherwise specified in this Section 3.5, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm")Company’s independent auditors, provided, that the Accounting Firm’s whose determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationbinding on all parties. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding anything contained herein, if it shall be determined that you are entitled to the Excise Tax Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to 2.99 times your “base amount,” within the meaning of Section 280G(b)(3) of the Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made in such a manner as to maximize the economic present value as of the date of the change in control transaction of all Payments actually made to you. For purposes of this Agreement, the “Parachute Value” of a Payment shall mean the present value as of the date of the change in control transaction for purposes of Section 280G of the Code of the portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2) of the Code. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) 8 shall not be conditioned upon Grantee's your Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee you shall be considered to pay federal income tax at Grantee's your actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's your actual marginal rate of taxation in the state and locality of Grantee's your residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)8, net of Grantee's your 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 Grantee's your itemized deductions under federal income tax law. (iib) All determinations required to be made under this Section 8(n)8, including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board of Directors of the REIT as constituted immediately prior to the change in control transaction (the "“Accounting Firm"”), provided, that the Accounting Firm’s determination shall be made based upon "“substantial authority" ” within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "“Determination"”), together with detailed supporting calculations and documentation, to Grantee you and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee you reasonably believes believe that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n)8, shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) 8 be made later than the end of Grantee's your taxable year next following Grantee's your taxable year in which Grantee remits you remit the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee you under this Section 8(n) 8 due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's your taxable year following Grantee's your taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's your taxable year following Grantee's your taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iiic) Grantee You shall immediately 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 Excise Tax Gross-Up Payment. Grantee You shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives you give such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee you in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee you shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive --------------------------- by the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when Company shall make an Excise Tax additional Gross-Up Payment is requiredin respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Codeexcess is finally determined. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee Executive and the Company within 15 business days following shall each reasonably cooperate with the date other in connection with any administrative or judicial proceedings concerning the existence or amount of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any liability for Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. (iA) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution by the Company to Grantee or for Grantee's the benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company Executive (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise) (a "“Payment"), ”) would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with or any interest or penalties imposed are incurred by the Executive with respect to the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then Grantee the Executive shall be entitled to receive an additional payment (the "Excise Tax a “Gross-Up Payment"”) in an amount such that, that after payment by Grantee the Executive of all taxes (and including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon on the Excise Tax Gross-Up Payment, Grantee the Executive retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (iiB) All Subject to the provisions of Section 6.2(C), all determinations required to be made under this Section 8(n)6.2, including whether and when an Excise Tax a Gross-Up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determinationPayment, shall be made by such a nationally recognized accounting firm as may be selected designated by the Board as constituted immediately prior to the change in control transaction Company (the "“Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm ”) which shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, both to Grantee the Company and the Company Executive within 15 fifteen (15) business days following the date of termination if applicableafter there has been a Payment, or such other earlier time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or 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 Company 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 Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n)6, shall be paid by the Company to you no later than the later Executive within five days of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding determination. Any determination by the date Accounting Firm shall be binding upon the Excise Tax becomes payable; providedCompany 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, however, it is possible that in no event shall any such Excise Tax Gross-Up Payment or any Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 6.2(C) and the Executive thereafter is required to make a payment of any income or other taxes to 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 under this Section 8(n) be made later than to or for the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject benefit of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationExecutive. (iiiC) Grantee The Executive shall immediately 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 Excise Tax Gross-Up Payment. Grantee Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee the Executive in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall the Executive shall: (i) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and ; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest such claim; and (iv) permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6.2(C), 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 further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (D) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6.2(C), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 6.2(C)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6.2(C), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Excise Tax Gross-Up Payment. (a) Whether or not the Chairman becomes entitled to any payment pursuant to Section 8(b)(i) hereof, if any of the payments or benefits received or to be received by the Chairman in connection with the transactions contemplated by the Merger Agreement or any Change in Control which occurs during the Term hereof or any termination of the Chairman's employment which occurs during the Term hereof (whether such payments or benefits are received pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Xxxx, the Company, any other party to the Merger Agreement, any Person whose actions result in a Change in Control or any Person affiliated with Xxxx, the Company or such Person)(such payments or benefits (excluding the payment or payments to be made pursuant to this Section 9) being hereinafter referred to as the "Total Payments") will be subject to the Excise Tax, the Company shall pay to the Chairman an additional amount (the "Gross-Up Payment") such that the net amount retained by the Chairman, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the payment or payments provided by this Section 9, shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) In all of the event it Total Payments shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the Code)) unless, paid or payable pursuant in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to this Agreement the Chairman and selected by the accounting firm which was, immediately prior to the Effective Time, Xxxx'x independent auditor (a the "PaymentAuditor"), would be subject such payments or benefits (in whole or in part) to do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the excise tax imposed by Section 4999 Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, after payment by Grantee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal treated as subject to the Excise Tax imposed upon unless, in the Payments. The Company’s obligation opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to make such reasonable compensation, or are otherwise not subject to the Excise Tax Gross-Up Payments under this Section 8(nTax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall not be conditioned upon Grantee's Separation from Servicedetermined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Chairman shall be considered deemed to pay federal income tax at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, made and state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and locality of Granteethe Chairman's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Excise Tax Gross-Up Payment is calculated, calculated for purposes of this Section 8(n9), net of Grantee's actual 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 Grantee's itemized deductions under federal income tax law. (iic) All determinations required In the event that the Excise Tax is finally determined to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, less than the amount of such Excise Tax Gross-Up Payment and taken into account hereunder in calculating the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant the Chairman shall repay to this Section 8(n)the Company, shall be paid by within the Company to you no later than the later of five (i5) 15 business days immediately following the receipt date that the amount of the Accounting Firm’s Determination or (ii) 15 business days preceding the date such reduction in the Excise Tax becomes payable; providedis finally determined, however, that in no event shall any such Excise Tax the portion of the Gross-Up Payment or attributable to the amount of such reduction (including the Excise Tax component and the federal, state and local income and employment tax components of the Gross-Up Payment) to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Chairman's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (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 income interest, penalties or other taxes to be paid additions payable by the Company under this Section 8(nChairman with respect to such excess) be made later than within the end of Grantee's taxable year next five (5) business days immediately following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by date that the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result amount of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit excess is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationfinally determined. (iiid) Grantee The Chairman shall immediately 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 Excise Tax an additional Gross-Up Payment. Grantee Such notification shall be given no later than ten (10) business days after the Internal Revenue Service issues to the Chairman either a written notice proposing imposition of the Excise Tax or a statutory notice of deficiency with respect thereto, and the Chairman shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Chairman shall not pay such claim prior to the expiration of the thirty (30-) day period following the date on which Grantee the Chairman 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 Grantee the Chairman in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall the Chairman shall: (w) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and ; (x) 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; (y) cooperate with the Company in good faith in order to effectively contest such claim; and (z) permit the Company to participate in and control any proceedings relating to such claim; provided, provided however, that the Company shall directly bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee the Chairman harmless, on an after-tax basis, for any Excise Tax or Tax, income tax (and employment tax, including interest and penalties) penalties with respect thereto, imposed as a result of such representation and contestpayment of costs and expenses. Without limitation of the foregoing, 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, proceeding, hearings, and conferences with the taxing authority in respect of such claim.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that If any payment to the Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "Payment"), would be becomes subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code Code, the Company shall, as soon as reasonably practicable thereafter after written notice thereof to the Board, make an additional cash payment to the Executive (together with the "Gross-Up Payment"). The Gross-up Payment shall equal the amount, if any, needed to ensure that the net Payments (including the Gross-up Payment) actually received by Executive after the imposition of federal and state income and excise taxes (including any interest or penalties imposed with respect to such excise tax, by the "Excise Tax"Internal Revenue Service), then Grantee shall be entitled is equal to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, that Executive would have netted after payment by Grantee the imposition of all taxes (federal and any interest or penalties imposed with respect to such taxes), including, without limitation, any state income taxes and Excise Tax had the Payments not been subject to the taxes imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount by Section 4999. The determination of the Excise Tax Gross-Up whether any Payment equal is subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment hereunder (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee shall each reasonably cooperate with the other in writing prior connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to any Payment, and the expiration of such period that the Company desires Executive agrees to contest such claim, Grantee shall give the Company take all information actions reasonably requested by the Company relating to any Internal Revenue Service claim with respect to any such Excise Tax liability to allow the Company to timely contest such claim, cooperate with at the Company Company's sole discretion and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestexpense.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that If any payment to the Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "Payment"), would be becomes subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code Code, the Company shall, as soon as reasonably practicable thereafter after written notice thereof to the Board, make an additional cash payment to the Executive (together with the "Gross-Up Payment"); provided that such payment will be made no later than the end of the calendar year following the calendar year in which such Excise Tax is paid. The Gross-up Payment shall equal the amount, if any, needed to ensure that the net Payments (including the Gross-up Payment) actually received by Executive after the imposition of federal and state income and excise taxes (including any interest or penalties imposed with respect to such excise tax, by the "Excise Tax"Internal Revenue Service), then Grantee shall be entitled is equal to receive an additional payment (the "Excise Tax Gross-Up Payment") in an amount such that, that Executive would have netted after payment by Grantee the imposition of all taxes (federal and any interest or penalties imposed with respect to such taxes), including, without limitation, any state income taxes and Excise Tax had the Payments not been subject to the taxes imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount by Section 4999. The determination of the Excise Tax Gross-Up whether any Payment equal is subject to the Excise Tax imposed shall be based upon the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment hereunder, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment hereunder (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee shall each reasonably cooperate with the other in writing prior connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to any Payment, and the expiration of such period that the Company desires Executive agrees to contest such claim, Grantee shall give the Company take all information actions reasonably requested by the Company relating to any Internal Revenue Service claim with respect to any such Excise Tax liability to allow the Company to timely contest such claim, cooperate with at the Company Company's sole discretion and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestexpense.

Excise Tax Gross-Up Payment. (i) In The provisions of this subsection (h) shall apply only if (X) the Company terminates Executive's employment hereunder at any time on or before May 16, 2003 or (Y) the applicable Change in Control (as defined below) occurs after the date hereof. (ii) Subject to subsection (i) above, in the event it shall be determined that any payment and/or the value of any benefit, or distribution any portion thereof, received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company be received by Executive (within the meaning of Section 280G(b)(2) of the Code), other than any amount paid or payable to Executive pursuant to this Agreement Section 2(h)) (a collectively, "PaymentPayments"), would be subject (in whole or in part) to will make Executive liable for payment of the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax")) provided for under Section 4999 of the Code, then Grantee the Company or the acquiring or successor entity of the Company shall be entitled pay to receive Executive within ninety (90) days of the date Executive becomes subject to the Excise Tax, an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net after-tax amount such thatretained by the Executive, after payment by Grantee deduction of all taxes (X) any Excise Tax on the Payments, and (Y) any interest federal, state, local or penalties imposed with respect to such taxes)foreign income, including, without limitation, any income taxes employment or other tax and Excise Tax imposed upon any payment provided for by this Section 2(h), shall be equal to the Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive calculated as if the Payments were not subject to the Excise Tax. Under no circumstances shall the terms of this Section 2(h) be construed to alter the timing, form, or any other provisions of the Payments. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax: (1) Any other payments or benefits received or to be received by Executive in connection with the transactions contemplated by a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company), shall be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company and acceptable to Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G in excess of the "base amount" within the meaning of Section 280G, or are otherwise not subject to the Excise Tax. (2) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments, or (2) the amount of the excess parachute payments within the meaning of Section 280G (after applying the above provisions). (3) The value of the non-cash benefits, or any deferred payment or benefit, shall be determined by an independent public accounting firm mutually agreeable to the Company and Executive (the "Accountants") in accordance with the principles of Section 280G of the Code. (iii) For purposes of determining the amount of the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in for the calendar year in with respect to which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and locality of Granteethe Executive's residence on the date on which of the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)to be made, net of Grantee's actual 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 Grantee's itemized deductions under federal income tax law. (iiiv) All determinations required In the event that the Excise Tax is subsequently determined to be made less than the amount taken into account under this Section 8(n2(h), including whether and when an Excise Tax Gross-Up Payment is required, Executive shall repay to the Company at the time that the amount of such reduction of Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determinationis finally determined, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior an amount equal to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 sum of the Code. The Accounting Firm shall provide its determination following: (i) the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any amount of the Payments may be subject to reduction of the Excise Tax, (ii) or the Company. All fees and expenses amount of the Accounting Firm shall be borne solely reduction in all other taxes generated by the Company. Any reduction in the Excise Tax Gross-Up PaymentTax, as determined pursuant to this Section 8(n), shall be paid by and (iii) interest on the Company to you no later than amount of the later sum of (i) 15 business days following the receipt of the Accounting Firm’s Determination or and (ii) 15 business days preceding at the date rate provided in Section 1274(b)(2)(B) of the Code. (v) In the event that the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or is determined to exceed the amount previously taken into account under the Section 2(h) (including by reason of any payment the existence or amount of any income or other taxes to which cannot be paid by determined at the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to ), the Company shall make an additional Excise Tax Gross-Up Payment in respect to such excess (or such shorter period ending on the date that plus any payment of taxes interest payable with respect to such claim is due). If excess) at the Company notifies Grantee in writing prior to time that the expiration amount of such period that excess is finally determined in accordance with the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with principles set forth above. (vi) Unless the Company and take Executive otherwise agree in writing, any determination required under this Section 2(h) shall be made in writing by the Accountants, whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 2(h), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such action information and documents as the Accountants may reasonably request in order to make a determination under this Section 2(h). The Company shall bear all costs the Accountants may reasonably incur in connection with contesting such claim as any calculations contemplated by this Section 2(h). (vii) References to Sections 280G and 4999 of the Company Code shall reasonably request in writing from time include any provisions which are similar to time, and permit the Company to participate in and control any proceedings relating or are a successor to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestCode section.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which If Executive’s employment is in the nature of compensation and is contingent on a change in the ownership or effective control of terminated by the Company or the ownership of without Cause within 18 months after a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be Change in Control and Executive becomes subject (in whole or in part) to the excise tax imposed by Internal Revenue Code (“Code”) Section 4999 of (the Code (together with any interest or penalties imposed “Parachute Excise Tax”) with respect to any amounts paid or payable to Executive under this Agreement, then the Company and Executive agree that: (a) If the aggregate of all “parachute payments” (as such excise tax, term is used under Code Section 280G) does not exceed 330% of the "Excise Tax"“base amount” (as such term is used under Code Section 280G), then Grantee the parachute payment shall be entitled reduced to receive an additional 299.99% of such base amount; (b) If the aggregate of all parachute payments exceeds 330% of the base amount, then the Company shall pay to Executive a tax gross-up payment (the "Excise Tax Gross-Up Payment") in an amount such that, so that after payment by Grantee or on behalf of Executive of all federal, state and local excise, income, employment, Medicare and any other taxes (including any related penalties and any interest or penalties imposed with respect interest) resulting from the payment of the parachute payments and the tax gross-up payments to such taxes)Executive by the Company, including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax GrossExecutive retains on an after-Up Payment, Grantee retains tax basis an amount of the Excise Tax Gross-Up Payment equal to the amount that Executive would have retained if Executive had not been subject to the Parachute Excise Tax imposed upon Tax; (c) The computation of the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this excess parachute payment in accordance with Code Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee 280G shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in done by a nationally recognized and reputable independent accounting or valuation firm selected and paid for by the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax lawCompany. (iid) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, Executive shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any tax gross-up payments. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Excise Tax Gross-Up PaymentCompany of the nature of such claim and the date on which such claim is requested to be paid. Grantee Executive shall not pay such claim prior to the expiration of the 30-day thirty (30)-day period following the date on which Grantee Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Grantee Executive in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall Executive shall: (i) give the Company all any information reasonably requested by the Company relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee Executive harmless, on an after-tax basis, for any Excise Tax excise tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, 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 Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and sxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a gross-up payment would be payable hereunder and 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. (e) If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of this Section 10) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of gross-up payment required to be paid.

Excise Tax Gross-Up Payment. (ia) In Except as set forth below, in the event it shall be determined that any payment or distribution to Grantee you or for Grantee's your benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company REIT or the ownership of a substantial portion of the assets of the Company REIT (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable pursuant to this Agreement letter or otherwise (a "“Payment"”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "“Excise Tax"”), then Grantee you shall be entitled to receive an additional payment (the "“Excise Tax Gross-Up Payment"”) in an amount such that, after payment by Grantee you of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains you retain an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation Notwithstanding anything contained herein, if it shall be determined that you are entitled to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered but that the Parachute Value (as defined below) of all Payments does not exceed 110% of an amount equal to pay federal income tax at Grantee's actual marginal rate 2.99 times your “base amount,” within the meaning of federal income taxation in Section 280G(b)(3) of the calendar year in which Code (the “Safe Harbor Amount”), then no Excise Tax Gross-Up Payment is shall be made to you and the amounts payable under this letter shall be madereduced so that the Parachute Value of all Payments, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality aggregate, equals the Safe Harbor Amount. The reduction of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculatedamounts payable hereunder, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determinationif applicable, shall be made by in such nationally recognized accounting firm a manner as may be selected by to maximize the Board economic present value as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.of

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally deter mined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculated, for purposes attributable to such reduction (plus that portion of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is requiredattributable to the tax on the portion of the Gross-Up Payment being repaid, to the extent the repayment results in a reduction in tax) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is deter mined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall make an additional Gross-Up Payment and the assumptions in respect to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination")excess, together with detailed supporting calculations and documentationinterest, to Grantee and the Company within 15 business days following the date of termination if applicable, penalties or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely additions payable by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid Executive with respect thereto (and taxes payable by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where Executive as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax additional Gross-Up Payment) at the time such excess is finally determined. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to Executive and the Company (shall each reasonably cooperate with each other in connection with any administrative or such shorter period ending on judicial proceedings concerning the date that any payment existence or amount of taxes liability for Excise Tax with respect to such claim is due). If the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. (ia) In The Company and the event it shall be determined Executive acknowledge that any payment or distribution to Grantee the payments and benefits provided under this Agreement, and benefits provided to, or for Grantee's the benefit which is in of, the nature of compensation Executive under other Company plans and is contingent on a change in agreements (such payments or benefits are collectively referred to as the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2"Payments") of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be are subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"). In addition to the Payments, then Grantee the Company shall be entitled pay to receive an additional the Executive within five (5) business days of Payment subject to the Excise Tax, a gross up payment (the "Excise Tax Gross-Gross Up Payment") in an equal to the amount such thatwhich, after payment by Grantee the deduction of all taxes (any applicable Federal, State and any interest or penalties imposed with respect to such taxes), including, without limitation, any Local income taxes and Excise Tax imposed upon attributable to the Gross Up Payment, is equal to the Excise Tax Gross-including the Excise Tax attributable to the Gross Up Payment. (b) The Company shall pay to the applicable government taxing authorities, Grantee retains an as Excise Tax withholding, the amount of the Excise Tax Gross-Up that the Company has actually withheld from the Payment equal or Payments. (c) If it is established pursuant to a determination of a court, or an Internal Revenue Service (the "IRS") decision, action or proceeding, that there has been an underpayment of the Excise Tax imposed upon (an "Underpayment"), the Payments. The Company’s obligation Company shall pay to make Excise Tax Gross-Up Payments under this Section 8(nthe Executive within thirty (30) shall not be conditioned upon Grantee's Separation from Service. For purposes days of determining such determination or resolution, the amount which, after the deduction of any Excise Tax Gross-Up Paymentapplicable federal, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in taxes, including the state Excise Tax, is equal to the Underpayment, plus applicable interest and locality of Grantee's residence on penalties until the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax lawpayment. (iid) All determinations required The Company hereby agrees to be made under this Section 8(n)indemnify, defend, and hold harmless the Executive for any and all claims arising from or related to non-payment of Excise Tax, including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment tax and any and all costs, interest, expenses, penalties associated with the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any non- payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested fullest extent permitted by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestlaw.

Excise Tax Gross-Up Payment. (i) In the event it shall be determined that any payment and/or the value of any benefit, or distribution any portion thereof, received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company be received by Executive (within the meaning of Section 280G(b)(2) of the Code), other than any amount paid or payable to Executive pursuant to this Agreement Section 2(h)) (a collectively, "PaymentPayments"), would be subject (in whole or in part) to will make Executive liable for payment of the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax") provided for under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), then Grantee the Company or the acquiring or successor entity of the Company shall be entitled pay to receive Executive within ninety (90) days of the date Executive becomes subject to the Excise Tax, an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net after-tax amount such thatretained by the Executive, after payment by Grantee deduction of all taxes (i) any Excise Tax on the Payments, and (ii) any interest federal, state, local or penalties imposed with respect to such taxes)foreign income, including, without limitation, any income taxes employment or other tax and Excise Tax imposed upon any payment provided for by this Section 2(h), shall be equal to the Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive calculated as if the Payments were not subject to the Excise Tax. Under no circumstances shall the terms of this Section 2(h) be construed to alter the timing, form, or any other provisions of the Payments. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax: (1) Any other payments or benefits received or to be received by Executive in connection with the transactions contemplated by a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company), shall be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company and acceptable to Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G in excess of the "base amount" within the meaning of Section 280G, or are otherwise not subject to the Excise Tax. (2) The amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments, or (2) the amount of the excess parachute payments within the meaning of Section 280G (after applying the above provisions). (3) The value of the non-cash benefits, or any deferred payment or benefit, shall be determined by an independent public accounting firm mutually agreeable to the Company and Executive (the "Accountants") in accordance with the principles of Section 280G of the Code. For purposes of determining the amount of the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in for the calendar year in with respect to which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in the state and locality of Granteethe Executive's residence on the date on which of the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n)to be made, net of Grantee's actual the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration . In the phase-out of Grantee's itemized deductions under federal income tax law. (ii) All determinations required event that the Excise Tax is subsequently determined to be made less than the amount taken into account under this Section 8(n2(h), including whether and when an Excise Tax Gross-Up Payment is required, Executive shall repay to the Company at the time that the amount of such reduction of Excise Tax Gross-Up Payment and is finally determined, an amount equal to the assumptions to be utilized sum of the following: (i) the amount of the reduction of the Excise Tax, (ii) the amount of the reduction in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected all other taxes generated by the Board as constituted immediately prior to reduction in the change Excise Tax, and (iii) interest on the amount of the sum of (i) and (ii) at the rate provided in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 1274(b)(2)(B) of the Code. The Accounting Firm shall provide its determination (In the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided event that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or is determined to exceed the amount previously taken into account under the Section 2(h) (including by reason of any payment the existence or amount of any income or other taxes to which cannot be paid by determined at the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to ), the Company shall make an additional Excise Tax Gross-Up Payment in respect to such excess (or such shorter period ending on the date that plus any payment of taxes interest payable with respect to such claim is due). If excess) at the Company notifies Grantee in writing prior to time that the expiration amount of such period that excess is finally determined in accordance with the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with principles set forth above. Unless the Company and take Executive otherwise agree in writing, any determination required under this Section 2(h) shall be made in writing by the Accountants, whose determination shall be conclusive and binding upon Executive and the Company for all purposes. For purposes of making the calculations required by this Section 2(h), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Accountants such action information and documents as the Accountants may reasonably request in order to make a determination under this Section 2(h). The Company shall bear all costs the Accountants may reasonably incur in connection with contesting such claim as any calculations contemplated by this Section 2(h). References to Sections 280G and 4999 of the Company Code shall reasonably request in writing from time include any provisions which are similar to time, and permit the Company to participate in and control any proceedings relating or are a successor to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestCode section.

Excise Tax Gross-Up Payment. (i) In If any payments made and/or benefits --------------------------- provided to the event it shall be determined that any payment Executive by the Company, whether or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to not under this Agreement (a "PaymentPayments"), would be are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment xxxxxx (the xxx "Excise Tax GrossXxxxx-Up Xx Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, 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 Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment is calculatedattributable to the Excise Tax and federal, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax imposed on the Gross-Up Payment is requiredbeing repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (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 and the assumptions to be utilized in arriving at respect of such determinationexcess (plus any interest, shall be made by such nationally recognized accounting firm as may be selected penalties or additions payable by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive with respect to such claim excess) at the time that the amount of such excess is due)finally determined. If The Executive and the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information each reasonably requested by the Company relating to such claim, cooperate with the Company and take such action other in connection with contesting such claim as any administrative or judicial proceedings concerning the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, existence or amount of liability for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestwith respect to the Payments.

Excise Tax Gross-Up Payment. (i) In If the event it shall be determined that total of all payments made to the --------------------------- Employee pursuant to this Agreement, together with any payment or distribution other payments which the Employee has a right to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of receive from the Company (within or any affiliates or subsidiaries of the meaning Company) result in the imposition of an excise tax under Section 280G(b)(24999 (or any successor thereto) of the Code)Internal Revenue Code of 1986, paid or payable pursuant to this Agreement (a "Payment")as amended, would be subject (in whole or in part) to the Company shall pay the Employee an additional excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax"), then Grantee shall be entitled to receive an additional adjustment payment (the "Excise Tax Gross-Up Payment") in an amount such that, after the payment by Grantee of all taxes federal and state income and excise taxes, the Employee will be in the same after-tax position as if no excise tax had been imposed. Any payment or benefit which is required to be included under Section 280G or 4999 (and or any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount successor provisions thereto) of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For Internal Revenue Code for purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee whether an excise tax is payable shall be considered deemed a payment "made to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in Employee" or a payment "which the Excise Tax Gross-Up Payment is Employee has a right to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, receive" for purposes of this Section 8(n), net provision. The Company shall be responsible for the cost of Grantee's actual reduction in federal income taxes which could be obtained from deduction calculation of such state the excise tax by its independent certified accountant and local taxes, tax counsel and taking into consideration shall notify the phase-out Employee of Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately excise tax due prior to the change in control transaction (the "Accounting Firm"), provided, time such excise tax is due. If at any time it is determined that the Accounting Firm’s determination shall be additional excise tax adjustment payment previously made based upon "substantial authority" within to the meaning of Section 6662 Employee was insufficient to cover the effect of the Code. The Accounting Firm shall provide its determination (excise tax, the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Grossexcise tax gross-Up Payment, as determined up payment pursuant to this Section 8(n), provision shall be paid by increased to make the Company Employee whole, including an amount to you no later than cover the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income penalties resulting from incorrect or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject late payment of the excise tax contest, audit or litigation are remitted to resulting from the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationprior calculation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment payments or distribution benefits from the Corporation to Grantee you or for Grantee's your benefit which is in the nature connection with a Change of compensation and is contingent on a change in the ownership Control or effective control your termination of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code)employment, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a such payments or benefits, excluding the Gross-up Payment (as defined below), being hereinafter referred to as the "PaymentTotal Payments"), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with or any interest or penalties imposed with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Grantee you shall be entitled to receive an additional payment (the a "Excise Tax Gross-Up up Payment") in an amount such thatthat the net amount retained by you, after payment by Grantee of all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount deduction of any Excise Tax Gross-Up Paymenton the Total Payments and any Federal, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state tax and locality of Grantee's residence on the date on which the Excise Tax upon the Gross-Up Payment is calculatedup Payment, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which could shall be obtained from deduction of such state and local taxes, and taking into consideration equal to the phase-out of Grantee's itemized deductions under federal income tax lawTotal Payments. (iib) All Subject to the Provisions of Section 5(c), all determinations required to be made under this Section 8(n)5, including whether and when an Excise Tax a Gross-Up up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determinationup Payment, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction Xxxxxx Xxxxxxxx LLP (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm which shall provide its determination (the "Determination"), together with detailed supporting calculations both to the Corporation and documentation, to Grantee and the Company you within 15 business days following the date after a Change of termination Control or your Date of Termination, if applicable, or such other earlier time as is requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the CompanyCorporation. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax The initial Gross-Up up Payment, if any, as determined pursuant to this Section 8(n5(b), shall be paid by the Company to you no later than the later within 5 days of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding 's determination. If the date the Accounting Firm determines that no Excise Tax becomes payable; providedis payable by you, howeverit shall furnish you with an opinion that you have substantial authority not to report any excise tax on your Federal income tax return. Any determination by the Accounting Firm shall be binding upon the Corporation and you. 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 in no event shall any such Excise Tax Gross-Up Payment or any up Payments that will not have been made by the Corporation should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Corporation exhausts its remedies pursuant to Section 5(c) and you thereafter are required to make a payment of any income or other taxes to 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 under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due Corporation to any tax contest, audit you or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationfor your benefit. (iiic) Grantee You shall immediately notify the Company Corporation in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company Corporation of the Excise Tax Gross-Up up Payment. Grantee Such notification shall be given as soon as practicable but no later than 10 business days after you know of such claim and shall apprise the Corporation of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives you give such notice to the Company Corporation (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company Corporation notifies Grantee you in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall you shall: (i) give the Company all Corporation any information reasonably requested by the Company Corporation relating to such claim, cooperate with the Company and , (ii) take such action in connection with contesting such claim as the Company Corporation shall reasonably request in writing from time to time, and including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Corporation, (iii) cooperate with the Corporation in good faith in order effectively to contest such claim, and (iv) permit the Company Corporation to participate in and control any proceedings relating to such claim; provided, however, that the Company Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee you harmless, on an after-tax basis, for any Excise Tax or income tax (tax, including interest and penalties) penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5(c), the Corporation 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 you to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and you agree 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 Corporation shall determine; provided further, however, that if the Corporation directs you to pay such claim and xxx for a refund, the Corporation shall advance the amount of such payment to you, on an interest-free basis, and shall indemnify and hold you 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 your taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Corporation's control of the contest shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder and you 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 you of an amount advanced by the Corporation pursuant to Section 5(c), you become entitled to receive any refund with respect to such claim, you shall (subject to the Corporation's complying with the requirements of Section 5(c)) promptly pay to the Corporation the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by you of an amount advanced by the Corporation pursuant to Section 5(c), a determination is made that you are not entitled to any refund with respect to such claim and the Corporation does not notify you in writing of its intent to contest such denial or refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-up Payment required to be paid.

Excise Tax Gross-Up Payment. (ia) In the event it shall be determined that any payment or distribution by Emageon to Grantee or for Grantee's the benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company Employee (within the meaning of Section 280G(b)(2) of the Code), whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 3A (a "“Payment"), ”) would be subject (in whole or in part) to the excise tax imposed by Code Section 4999 of the Code (together with or any interest or penalties imposed are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "“Excise Tax"”), then Grantee Employee shall be entitled to receive an additional payment (the "Excise Tax a “Gross-Up Payment"”) in an amount such that, that after payment by Grantee Employee of all taxes (and including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Excise Tax Gross-Up Payment, Grantee Employee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (iib) All Subject to the provisions of Section 3A(c), all determinations required to be made under this Section 8(n)3A, including whether and when an Excise Tax a Gross-Up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized used in arriving at such determination, shall be made by such nationally recognized a certified public accounting firm as may be selected by Employee (other than the Board as constituted immediately prior Emageon’s regular accounting firm) and reasonably acceptable to the change in control transaction Emageon (the "“Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm ”) which shall provide its determination (the "Determination"), together with detailed supporting calculations both to Emageon and documentation, to Grantee and the Company Employee within 15 business days following of the date receipt of termination if applicablenotice from Employee that there has been a Payment, or such other earlier time as is reasonably requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the CompanyEmageon. All fees and expenses of the Accounting Firm shall be borne solely by the CompanyEmageon. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n)3A, shall be paid by the Company Emageon to you no later than the later Employee within five days of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding determination. Any determination by the date Accounting Firm shall be binding upon Emageon and Employee. As a result of the Excise Tax becomes payable; provideduncertainty in the application of Code Section 4999 at the time of the initial determination by the Accounting Firm hereunder, however, it is possible that in no event shall any such Excise Tax Gross-Up Payment or any Payments which will not have been made by Emageon should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Emageon exhausts its remedies pursuant to Section 3A(c) and Employee thereafter is required to make a payment of any income or other taxes to Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Emageon to or for the Company under this Section 8(n) be made later than the end benefit of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationEmployee. (iiic) Grantee Employee shall immediately notify the Company Emageon in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company Emageon of the Excise Tax a Gross-Up Payment (or an additional Gross-Up Payment). Grantee Such notification shall be given as soon as practicable but no later than ten business days after Employee is informed in writing of such claim and shall apprise Emageon of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee he gives such notice to the Company Emageon (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company Emageon notifies Grantee Employee in writing prior to the expiration of such period that the Company it desires to contest such claim, Grantee shall Employee shall: (1) give the Company all Emageon any information reasonably requested by the Company Emageon relating to such claim, cooperate with the Company and (2) take such action in connection with contesting such claim as the Company Emageon 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 Emageon, (3) cooperate with Emageon in good faith in order effectively to contest such claim, and (4) permit the Company Emageon to participate in and control any proceedings relating to such claim; provided, however, that the Company Emageon shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, contest and shall indemnify and hold Grantee Employee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penaltiespenalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation of the foregoing provisions of this Section 3A(c), Emageon shall control all proceedings taken in connection with such contest (to the extent applicable to the Excise Tax and the Gross-Up Payment) and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and 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 Emageon shall determine; provided, however, that if Emageon directs Employee to pay such claim and xxx for a refund, Emageon shall, if permitted by law, advance the amount of such payment to Employee, on an interest-free basis and shall indemnify and hold Employee harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Emageon’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and 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 Employee of an amount advanced by Emageon pursuant to Section 3A(c), Employee becomes entitled to receive any refund with respect to such claim, Employee shall (subject to Emageon’s complying with the requirements of Section 3A(c) promptly pay to Emageon the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by Emageon pursuant to Section 3A(c), a determination is made that Employee shall not be entitled to any refund with respect to such claim and Emageon does not notify 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 repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid. (e) Notwithstanding the other provisions of this Section 3A, (i) each Gross-Up Payment required to be made by Emageon to Employee hereunder and each repayment of a Gross-Up Payment required to be made by Employee to Emageon hereunder shall be paid no later than the end of the calendar year next following the calendar year in which Employee remits the corresponding taxes to the Internal Revenue Service, (ii) each reimbursement of expenses related to a tax audit or litigation addressing the existence or amount of a tax liability required to be made by Emageon to Employee hereunder and each repayment of such a reimbursement required to be made by Employee to Emageon hereunder shall be paid no later than the end of the calendar year next following the calendar year in which Employee remits to the Internal Revenue Service the taxes that are the subject of the audit or litigation or, where as a result of the audit or litigation no taxes are due or are remitted but other reimbursable costs and/or expenses have been incurred, the end of the calendar year following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, and (iii) to the extent that any portion of the Gross-Up Payment relates to payments that were triggered by the Employee’s “separation from service” within the meaning of Code Section 409A(a)(2)(A)(i), payment of such portion of the Gross-Up Payment which constitutes a “deferral of compensation” within the meaning of Code Section 409A and is not deemed to be payable upon another permissible payment date under Code Section 409A shall be delayed until the date that is six (6) months after the Employee’s Separation Date (provided if the Employee dies after his Separation Date but before the Gross-Up Payment is made, it will be paid to his estate as a lump sum and without regard to any six-month delay that otherwise applies to specified employees).

Excise Tax Gross-Up Payment. (ia) In The Company and the event it shall be determined Executive acknowledge that any payment or distribution to Grantee the payments and benefits provided under this Agreement, and benefits provided to, or for Grantee's the benefit which is in of, the nature of compensation Executive under other Company plans and is contingent on a change in agreements (such payments or benefits are collectively referred to as the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2"Payments") of the Code), paid or payable pursuant to this Agreement (a "Payment"), would be are subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise tax, the "Excise Tax") imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"). In addition to the Payments, then Grantee the Company shall be entitled pay to receive an additional the Executive within five (5) business days of Payment subject to the Excise Tax, a gross up payment (the "Excise Tax Gross-Gross Up Payment") in an equal to the amount such thatwhich, after payment by Grantee the deduction of all taxes (any applicable Federal, State and any interest or penalties imposed with respect to such taxes), including, without limitation, any Local income taxes and Excise Tax imposed upon attributable to the Gross Up Payment, is equal to the Excise Tax Gross-including the Excise Tax attributable to the Gross Up Payment. (b) The Company shall pay to the applicable government taxing authorities, Grantee retains an as Excise Tax withholding, the amount of the Excise Tax Gross-Up that the Company has actually withheld from the Payment equal or Payments. (c) If it is established pursuant to a determination of a court, or an Internal Revenue Service (the "IRS") decision, action or proceeding, that there has been an underpayment of the Excise Tax imposed upon (an "Underpayment"), the Payments. The Company’s obligation Company shall pay to make Excise Tax Gross-Up Payments under this Section 8(nthe Executive within thirty (30) shall not be conditioned upon Grantee's Separation from Service. For purposes days of determining such determination or resolution, the amount which, after the deduction of any Excise Tax Gross-Up Paymentapplicable federal, Grantee shall be considered to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in taxes, including the state Excise Tax, is equal to the Underpayment, plus applicable interest and locality of Grantee's residence on penalties until the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax lawpayment. (iid) All determinations required The Company hereby agrees to be made under this Section 8(n)indemnify, defend, and hold harmless the Executive for any and all claims arising from or related to non-payment of Excise Tax, including whether and when an Excise Tax Gross-Up Payment is required, the amount of such Excise Tax Grosstax and any and all costs, interest, expenses, penalties associated with the non-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested fullest extent permitted by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestlaw.

Excise Tax Gross-Up Payment. (i) In If any payments to Executive by the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of the --------------------------- Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement or otherwise (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect to such excise tax, the "Excise TaxCode"), then Grantee the Company shall be entitled pay to receive Executive an additional payment amount (the a "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon the Excise Tax such Gross-Up Payment, Grantee retains an amount of shall be equal to the Excise Tax Gross-Up Payment equal Payments. The determination whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up PaymentPay ment, Grantee the Executive shall be considered deemed to pay federal income tax at Grantee's actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be madefederal, and state and local income taxes at Grantee's actual the highest marginal rate of taxation in rates. In the state and locality of Grantee's residence on the date on which event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, at the time that the amount of such reduction is finally deter mined, the Executive shall repay the Company the portion of the Gross-Up Payment is calculated, for purposes attributable to such reduction (plus that portion of this Section 8(n), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when an Excise Tax Gross-Up Payment is requiredattributable to the tax on the portion of the Gross-Up Payment being repaid, to the extent the repayment results in a reduction in tax) plus interest on the amount of such Excise Tax Gross-Up Payment and repayment at the assumptions to be utilized rate provided in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 1274(b)(2)(B) of the Code. The Accounting Firm In the event that the Excise Tax is deter mined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment, the Company shall provide its determination (the "Determination")make an additional Gross-Up Pay ment in respect to such excess, together with detailed supporting calculations and documentationinterest, to Grantee and the Company within 15 business days following the date of termination if applicable, penalties or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely additions payable by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid Executive with respect thereto (and taxes payable by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where Executive as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax additional Gross-Up Payment) at the time such excess is finally determined. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee gives such notice to Executive and the Company (shall each reasonably cooperate with each other in connection with any administrative or such shorter period ending on judicial proceedings concerning the date that any payment existence or amount of taxes liability for Excise Tax with respect to such claim is due). If the Company notifies Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. (i) In If any payments to the event it shall be determined that any payment or distribution to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of Executive by --------------------------- the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to under this Agreement (a "PaymentPayments"), would be ) are subject (in whole or in part) to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (together with any interest or penalties imposed with respect to such excise taxCode, the "Excise Tax"), then Grantee Company shall be entitled pay to receive the Executive an additional payment amount (the "Excise Tax Gross-Up Payment") in an such that the net amount such thatretained by the Executive, after payment by Grantee deduction of any Excise Tax on the Payments and all taxes (and any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon such Company payment, shall be equal to the Excise Tax Gross-Up Payment, Grantee retains an amount Payments. The determination of the Excise Tax Gross-Up Payment equal whether any Payments are subject to the Excise Tax imposed upon shall be based on the Payments. The opinion of tax counsel selected by the Company and reasonably acceptable to the Executive, whose fees and expenses shall be paid by the Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax the Gross-Up Payment, Grantee the Executive shall be considered deemed to pay federal federal, state and local income tax taxes at Grantee's actual the highest marginal rate of federal income taxation applicable to any individual residing in the jurisdiction in which the Executive resides in the calendar year in which the Excise Tax Gross-Up Payment is to be made. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of 112 the Executive's employment, the Executive shall repay the Company, at the time that the amount of such reduction of Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence tax imposed on the date on which the Excise Tax Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or 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. In the event that the Excise Tax is calculated, for purposes determined to exceed the amount taken into account hereunder at the time of this Section 8(nthe termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) All determinations required to be made under this Section 8(n), including whether and when Company shall make an Excise Tax additional Gross-Up Payment is requiredin respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Codeexcess is finally determined. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee Executive and the Company within 15 business days following shall each reasonably cooperate with the date other in connection with any administrative or judicial proceedings concerning the existence or amount of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any liability for Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contestPayments.

Excise Tax Gross-Up Payment. (i) In the event If it shall be is determined that any payment payment, distribution, coverage or distribution benefit acceleration received or to Grantee or for Grantee's benefit which is in the nature of compensation and is contingent on a change in the ownership or effective control of be received by Xxxxxx from the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement or otherwise (a "Payment"), collectively referred to as the “Payments”) would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (together with any interest or penalties imposed with respect the “Code”), (such tax referred to such excise tax, as the "“Excise Tax"”), then Grantee Xxxxxx shall be entitled to receive an additional payment from the Company (the "“Excise Tax Gross-Up Payment"”) in an amount such thatthat the net amount retained by Xxxxxx, after payment by Grantee the calculation and deduction of all any Excise Tax on the Payments (together with any penalties and interest that have been or will be imposed on Xxxxxx in connection therewith) and any federal, state or local income taxes, Excise Taxes and payroll taxes (and any interest or penalties including the tax imposed with respect to such taxes), including, without limitation, any income taxes and Excise Tax imposed upon by Section 3101(b) of the Excise Tax Gross-Up Payment, Grantee retains an amount of Code) on the Excise Tax Gross-Up Payment provided for in this Section 3.5 shall be equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining In computing the amount of any Excise Tax Gross-Up Paymentthis payment, Grantee it shall be considered assumed that Xxxxxx is subject to pay tax by each taxing jurisdiction at the highest marginal tax rate in the respective taxing jurisdiction of Xxxxxx, taking into account the city and state in which Xxxxxx resides, but giving effect to the tax benefit, if any, which Xxxxxx may enjoy to the extent that any such tax is deductible in determining the tax liability of any other taxing jurisdiction (provided that the highest marginal tax rate for federal income tax at Grantee's actual marginal rate purposes shall be determined under Section 1 of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual marginal rate of taxation in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculated, for purposes of this Section 8(nCode), net of Grantee'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 Grantee's itemized deductions under federal income tax law. (ii) . All determinations required to be made under this Section 8(n)3.5, including whether and when an Excise Tax Gross-Up Payment is required, required and the amount of such Excise Tax Gross-Up Payment and the assumptions to be utilized in arriving at such determination, unless otherwise specified in this Section 3.5, shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm")Company’s independent auditors, provided, that the Accounting Firm’s whose determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Excise Tax Gross-Up Payment, as determined pursuant to this Section 8(n), shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 8(n) be made later than the end of Grantee's taxable year next following Grantee's taxable year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationbinding on all parties. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.

Excise Tax Gross-Up Payment. (ia) In the event it shall be determined that any payment or distribution Subject to Grantee or for Grantee's benefit which is Section 6(b) below, if in the nature of compensation and is contingent on connection with a change Change in the ownership or effective control of the Company or the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G(b)(2) of the Code), paid or payable pursuant to this Agreement (a "Payment"), Control Executive would be or is subject (in whole or in part) to the an excise tax imposed by under Section 4999 of the Internal Revenue Code (together with any interest or penalties imposed with respect to such excise taxany cash, benefits or other property received, or any acceleration of vesting of any benefit or award (the "Excise Tax"“Change in Control Benefits”), then Grantee Franklin shall be entitled to receive pay Executive an additional payment amount (the "Excise Tax a “Gross-Up Payment"”) in an equal to the sum of (i) the amount of such thatexcise tax plus (ii) all taxes, after payment by Grantee of all taxes (interest and any interest or penalties imposed with respect to such taxes)penalties, including, without limitation, any federal, state and local income taxes and any additional excise taxes, that become payable by Executive as a result of the receipt of the Gross-Up Payment or the assessment of any excise tax against Executive (the “Excise Tax imposed upon Tax”). In determining the Excise Tax amount of any Gross-Up Payment, Grantee retains an amount of the Excise Tax Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Company’s obligation to make Excise Tax Gross-Up Payments under this Section 8(n) shall not be conditioned upon Grantee's Separation from Service. For purposes of determining the amount of any Excise Tax Gross-Up Payment, Grantee Executive shall be considered deemed to pay federal income tax taxes at Grantee's actual the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made, and state and local income taxes at Grantee's actual the highest marginal rate rates of taxation for such year in the state and locality of Grantee's residence on the date on which the Excise Tax Gross-Up Payment is calculatedExecutive’s residence. For such purposes, for purposes of this Section 8(n), net of Grantee's actual reduction in federal income taxes which shall be determined net of the maximum reduction in such federal income taxes that could be obtained from the deduction of such state and local taxes, and taking into consideration the phase-out of Grantee's itemized deductions under federal income tax law. (iib) All determinations required Notwithstanding Section 6(a), if the Change in Control Benefits, when calculated on a net-after-tax basis (using the assumptions set forth in the last sentence of Section 6(a)), are less than 110% of the amount that could be paid to be made Executive without imposition of the excise tax under Section 4999 of the Internal Revenue Code, the Change in Control Benefits payable under this Section 8(n)Agreement shall be reduced to the largest amount payable without resulting in the imposition of such excise tax. (c) Within 30 days after Executive’s termination of employment, including a nationally recognized accounting firm selected by Franklin shall make a determination as to whether and when an any Excise Tax Gross-Up Payment is requiredshould be reported and paid by Executive, and if applicable, the amount of such Excise Tax and the related Gross-Up Payment. Within 30 days after such determination, Franklin shall pay the amount of such Gross-Up Payment to Executive, and the assumptions to be utilized in arriving at Executive shall report and pay such determination, Excise Tax. Franklin shall be made by such nationally recognized accounting firm as may be selected by the Board as constituted immediately prior to the change in control transaction (the "Accounting Firm"), provided, that the Accounting Firm’s determination shall be made based upon "substantial authority" within the meaning of Section 6662 of the Code. The Accounting Firm shall provide its determination (the "Determination"), together with detailed supporting calculations and documentation, to Grantee and the Company within 15 business days following the date of termination if applicable, or such other time as requested by you (provided that Grantee reasonably believes that any of the Payments may be subject to the Excise Tax) or the Company. All responsible for all fees and expenses of connected with the Accounting Firm shall be borne solely determinations by the Company. Any Excise Tax Gross-Up Payment, as determined accounting firm pursuant to this Section 8(n6. (d) In the event that Executive is at any time required to pay any Excise Tax in addition to any amount determined pursuant to subsection (a), Franklin shall be paid by the Company to you no later than the later of (i) 15 business days following the receipt of the Accounting Firm’s Determination or (ii) 15 business days preceding the date the Excise Tax becomes payable; provided, however, that in no event shall any such Excise Tax pay Executive a Gross-Up Payment determined with respect to such additional Excise Tax, within 30 days of such determination. In the event that Executive receives any refund of any Excise Tax with respect to which Executive has previously received a Gross-Up Payment hereunder, Executive shall promptly pay to Franklin the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). (e) Executive agrees to notify Franklin in the event of any audit or other proceeding by the IRS or any payment taxing authority in which the IRS or other taxing authority asserts that any Excise Tax should be assessed against Executive and to cooperate with Franklin in contesting any such proposed assessment with respect to such Excise Tax (a “Proposed Assessment”). Executive agrees not to settle any Proposed Assessment without the consent of Franklin. If Franklin does not settle the Proposed Assessment, or does not consent to allow Executive to settle the Proposed Assessment, within 30 days following such demand therefor, Franklin shall indemnify and hold harmless Executive (i) with respect to any additional interest and/or penalties that Executive is required to pay by reason of the delay in finally resolving Executive’s tax liability and (ii) with respect to any taxes, interest and penalties that Executive is required to pay by reason of any income or other taxes to be paid by the Company indemnification payment under this Section 8(nsubsection (e). (f) be made Franklin shall pay Executive all Gross Up Payments at the times described herein, but in no event later than the end of Grantee's taxable the calendar year next following Grantee's taxable the calendar year in which Grantee remits the related taxes. Any costs and expenses incurred by the Company on behalf of Grantee under this Section 8(n) due to any tax contest, audit or litigation will be paid by the Company by the end of Grantee's taxable year following Grantee's taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of Executive made such tax contest, audit or litigation no taxes are remitted, the end of Grantee's taxable year following Grantee's taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigationremittance. (iii) Grantee shall immediately 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 Excise Tax Gross-Up Payment. Grantee shall not pay such claim prior to the expiration of the 30-day period following the date on which Grantee 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 Grantee in writing prior to the expiration of such period that the Company desires to contest such claim, Grantee shall give the Company all information reasonably requested by the Company relating to such claim, cooperate with the Company and take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, and permit the Company to participate in and control any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest, and shall indemnify and hold Grantee harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties) imposed as a result of such representation and contest.