Common use of Excise Tax Gross-Up Clause in Contracts

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled (a) Anything in this Agreement to one or more payments (with a "the contrary notwithstanding, in the event it shall be determined that any payment" including the vesting of restricted stock, a stock optionaward, or other non-cash benefit or property), distribution (including any acceleration) by the Company or any entity which effectuates a transaction described in Section 280G(b)(2)(A)(i) of the Code to or for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan or agreement with the Company or any affiliated company additional payments required under this Section 10) (collectively, "Change of Control Payments"), which are or become a “Payment”) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties are incurred with respect to such excise tax by the Executive (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended (the "Code"“Excise Tax”), then the Company Executive shall pay be entitled to Executive at the time specified below such amount receive an additional payment (the "a “Gross-up Up Payment"”) as may be necessary to place in an amount such that after payment by the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includeall taxes, including, without limitation, reimbursement for any income taxes (and any interest and penalties imposed with respect thereto) and interest that may accrue in respect of such Excise Tax. For purposes of determining Taxes imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-up PaymentUp Payment equal to the Excise Tax imposed upon the Payments. For purposes of this Section 10, the Executive shall be deemed: (A) deemed to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable federal, state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Gross Up Payment is to be made, net of taking into account the maximum reduction in federal income taxes which could be obtained from the deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined income taxes. (b) All determinations required to be less than the amount taken into account hereunder at the time the made under this Section 10, including whether and when a Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest required and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company’s independent auditors or portion thereof cannot such other certified public accounting firm of national standing reasonably acceptable to the Executive as may be finally determined on or before such day, designated by the Company (the “Accounting Firm”) which shall pay provide detailed supporting calculations both to the Company and the Executive on within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such day an estimateearlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined by counsel or auditors selected pursuant to this Section 10, shall be paid by the Company to the Executive within five days of the later of (i) the due date for the payment of any Excise Tax, and reasonably acceptable to (ii) the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the minimum amount uncertainty in the application of such payments. The Company shall pay to Executive Section 4999 of the remainder of such payments (together with interest Code at the rate provided in Section 1274(b)(2)(B) time of the Codeinitial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) as soon as or Gross-up Payments are made by the amount thereof can Company which should not have been made (“Overpayments”), consistent with the calculations required to be determinedmade hereunder. In the event that the Executive is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the estimated payments exceeds the amount subsequently determined to have been due, Underpayment that has occurred and any such excess Underpayment shall constitute a loan be promptly paid by the Company to or for the benefit of the Executive. In the event the amount of Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, payable on the fifth day after demand Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company (together in connection with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings any contests or disputes with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderTax.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” for this purpose including the accelerated vesting of restricted stock, a stock optionoptions or other equity awards, or other non-cash benefit benefits or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "“Change of in Control Payments"”), which are or become subject to the tax ("the “Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of in Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c) Section 8 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentpayment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1274 (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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 17, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive's (i) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to the Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If In addition, if it is determined by an independent accountant mutually acceptable to the Company and Executive becomes entitled that as a result of any payment in the nature of compensation made by the Company to one (or more payments for the benefit of) Executive pursuant to this Agreement or otherwise, an excise tax may be imposed on Executive pursuant to Section 4999 of the Code (or any successor provisions), the Company shall pay Executive in cash an amount equal to X determined under the following formula: (the "Excise Tax Gross Up"): E x P X = -------------------------------- 1-[(FI x (1-SLI)) + SLI + E + M] where E = the rate at which the excise tax is assessed under Section 4999 of the Code (or any successor provisions); P = the amount with a "payment" including respect to which such excise tax is assessed, determined without regard to the vesting Excise Tax Gross Up; FI = the highest effective marginal rate of restricted stockincome tax applicable to Executive under the Code for the taxable year in question (taking into account any phase-out or loss of deductions, a stock option, personal exemptions or other nonsimilar adjustments); SLI = the sum of the highest effective marginal rates of income tax applicable to Executive under all applicable state and local laws for the taxable year in question (taking into account any phase-cash out or loss of deductions, personal exemptions and other similar adjustments); and M = the highest marginal rate of Medicare tax applicable to Executive under the Code for the taxable year in question. With respect to any payment in the nature of compensation that is made to (or for the benefit or property), whether pursuant to of) Executive under the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), otherwise and on which are or become subject to the an excise tax ("Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")or any successor provisions) may be assessed, the Company payment determined under this sub-paragraph 9(c) shall pay be paid to Executive at the time specified below such amount (of the "GrossChange in Control but prior to the consummation of the transaction with any successor. It is the intention of the parties that the Company provide Executive with a full tax gross-up Payment") as may be necessary to place Executive in under the same provisions of this sub-paragraph, so that on a net after-tax position as if no portion of basis, the Change of Control Payments and any amounts paid result to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for same as if the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net excise tax under Section 4999 of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments Code (or any portion thereofsuccessor provisions) had not been imposed. The Excise Tax Gross Up may be adjusted if alternative minimum tax rules are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable applicable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled (a) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment or more payments distribution by the Company to or for Employee's benefit (with a "payment" including the vesting of restricted stock, a stock option, whether paid or other non-cash benefit payable or property), whether distributed or distributable pursuant to the terms of this Agreement or pursuant to an Employment Agreement or any other compensatory Company plan or agreement with arrangement, without taking into account the Company or any affiliated company Gross-Up Payment, as hereinafter defined) (collectively, a "Change of Control PaymentsPayment"), which are or become ) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Company "Excise Tax"), then Employee shall pay be entitled to Executive at the time specified below such amount receive an additional payment (the a "Gross-up Up Payment") as may be necessary in an amount such that after payment by Employee of all Federal, state and local taxes (including any interest or penalties imposed with respect to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includesuch taxes), including, without limitation, reimbursement for any income taxes, withholding taxes and payroll taxes (and any interest and penalties imposed with respect thereto) and interest that may accrue in respect of such Excise Tax. For purposes of determining Tax imposed upon the Gross-Up Payment, Employee retains an amount of the Gross-up Payment, Executive shall be deemed: (A) Up Payment equal to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined imposed upon the Payments. All determinations required to be less than the amount taken into account hereunder at the time the made under this Section 11, including whether and when a Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest required and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment or portion thereof cannot and the assumptions to be finally determined on or before utilized in arriving at such daydetermination, shall be made by a nationally recognized accounting firm as may be designated by Employee (the Company "Accounting Firm") which shall pay provide detailed supporting calculations both to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments Employee within fifteen (together with interest at the rate provided in Section 1274(b)(2)(B15) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.business days of

Excise Tax Gross-Up. If 4.1 Whether or not the Executive becomes entitled to one the Severance Payment and Severance Benefits, if any of the payments or more payments (benefits received or to be received by the Executive in connection with a "payment" including Change in Control or the vesting Executive's termination of restricted stock, a stock option, or other non-cash benefit or property), employment (whether pursuant to the terms of this the Agreement or any other plan agreement, plan, or agreement arrangement with the Company Employer, any Person whose actions result in a Change in Control or any Person affiliated company with the Employer or such Person) (collectivelysuch payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may will be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The , the Employer shall pay to the Executive an additional amount (the "Gross Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-up Up Payment (but without deducting federal, state and local income and employment taxes on the Total Payments), shall include, without limitation, reimbursement for be equal to the Total Payments. 4.2 For purposes of determining whether any penalties of the Total Payments will be subject to the Excise Tax and interest that may accrue in respect the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) should not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of Section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the 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 such reasonable compensation, or should otherwise not be subject to the Excise Tax and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined 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 the Gross-up Gross Up Payment, the Executive shall be deemed: (A) deemed to pay federal income taxes tax at the highest marginal rate of federal income taxation for in the calendar year in which the Gross-up Gross Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for in the calendar year in state and locality of the Executive's residence at the time of the Severance (or if there is no Severance, then the date on which the Gross-up Up Payment is to be madecalculated for purposes of this Section 4.2), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If taxes. 4.3 In the event that the Excise Tax is subsequently finally determined to be less than the amount taken into account hereunder at the time in calculating the Gross-up Payment is madeUp Payment, the Executive shall repay to the Company at Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined (butdetermined, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Gross Up Payment attributable to such reduction (plus that would not have been paid if such portion of the Gross Up Payment attributable to the Excise Tax had been used in initially calculating the Gross-up Paymentand federal, plus interest state and local income and employment taxes imposed on the amount of Gross Up Payment being repaid by the Executive, to the extent that such repayment at results in a reduction in the rate provided Excise Tax and a dollar-for-dollar reduction in Section 1274(b)(2)(B) the Executive's taxable income and wages for purposes of the Codefederal, state and local income and employment taxes). 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 is madeGross Up Payment), the Company shall make an additional Gross-up Gross Up Payment in respect of such excess (plus any interest and interest, penalties or additions payable by the Executive with respect to such excess) at within five (5) business days following the time that the amount of such excess is finally determined. The Gross-up Payment Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. 4.4 The payments provided for above in Section 4.1 shall be paid made on the 30th day (date that is 6 months after the Severance Date or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Taxsoon as practicable thereafter; provided, however, that if the amount amounts of such Gross-up Payment or portion thereof payments cannot be finally determined on or before such day, the Company Employer shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected in good faith by the Company and reasonably acceptable to ExecutiveEmployer or, in the case of payments under Section 4.1 or 4.3, in accordance with Section 4.2, of the minimum amount of such payments. The Company payments to which the Executive is clearly entitled and shall pay to Executive the remainder of such payments (together with interest on the unpaid remainder (or on all such payments to the extent the Company fails to make such payments when due) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan be paid by the Company Executive to Executive, payable on the Employer not later than the fifth (5th) business day after demand by the Company Employer. At the time that payments are made under the Agreement, the Employer shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Employer has received from Tax Counsel, the Auditor or other advisors or consultants (together with interest at and any such opinions or advice which are in writing shall be attached to the rate statement). 4.5 The Employer also shall pay to the Executive all legal fees and expenses incurred by the Executive in seeking in good faith to obtain or enforce any benefit or right provided in Section 1274(b)(2)(B) of by the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise Agreement or in connection with any tax audit or proceeding to the determination and assessment extent attributable to the application of Section 4999 of the Code to any Excise Tax and, at its sole option, the Company may pursue payment or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings benefit provided hereunder. Such payments shall be limited to issues made within five (5) business days after delivery of the Executive's written requests for payment accompanied with respect to which a Gross-up Payment would be payable hereunder, such evidence of fees and Executive shall be entitled to settle or contest any other issue raised by expenses incurred as the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderEmployer reasonably may require.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); providedPROVIDED, howeverHOWEVER, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (or any similar tax that may hereafter be imposed) (the “Excise Tax”), the Company shall pay to the Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 16, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to the Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise TaxTax and that the Executive has the right to such Gross-up Payment pursuant to this Section 16 ; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before by such daydate, the Company shall pay to the Executive on such day date an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments payments, if any, (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as ), immediately upon the determination of the amount thereof can be determinedthereof. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, the Executive shall immediately repay such excess shall constitute a loan by to the Company to Executive, payable on the fifth day after demand by the Company date such amount is finally determined (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent legal counsel, compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (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 shall indemnify and hold Executive harmless in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Executive shall notify the Company shall have the right to control all proceedings with in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive 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 it gives such notice to the Company (or such shorter period ending on the date that may arise any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the determination Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and assessment of pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall control all proceedings taken in connection with such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or to contest the claim in any interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx 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 or employment tax (including income or employment or 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 over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Section 10, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall cooperate (subject to the Company's complying with the Company in any proceedings relating 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 the Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and assessment the Company does not notify the Executive in writing of any Excise Tax 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 take any position or action that would materially increase be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up Up Payment hereunderrequired to be paid.

Excise Tax Gross-Up. If Executive In the event that the Officer becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Bank or the Holding Company or any affiliated company or from or pursuant to the terms of the Flushing Financial Corporation Employee Benefit Trust) (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (or any similar tax that may hereafter be imposed) (the “Excise Tax”), the Holding Company shall pay to Executive the Officer at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Officer, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this section 11, but before reduction for any federal, state or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing selected by the Holding Company and reasonably acceptable to the Officer (“Independent Auditors”), the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Holding Company’s Independent Auditors appointed pursuant to clause (i) above in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive the Officer shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Officer’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive the Officer shall repay to the Holding Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive the Officer or otherwise realized as a benefit by Executivethe Officer) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Holding Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determineddetermined (but in no event later than the end of the calendar year next following the calendar year in which the Officer remits the related taxes). The Gross-up Payment provided for above shall be paid on the 30th thirtieth day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise TaxTax (but in no event later than the end of the calendar year next following the calendar year in which the Officer remits the related taxes); provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Holding Company shall pay to Executive the Officer on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable Holding Company’s Independent Auditors appointed pursuant to Executiveclause (i) above, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executiveamount, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), shall be repaid by the Officer to the Holding Company within five (5) days after notice from the Holding Company of such determination. If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Holding Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Holding Company may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Holding Company's ’s control over any such proceedings shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder, hereunder and Executive the Officer shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive The Officer shall cooperate with the Holding Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (or any similar tax that may hereafter be imposed) (the “Excise Tax”), the Company shall pay to the Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 17, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to the Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If while a member of the Business Planning Committee Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "Code"“Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 17, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to the Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "“Change of Control Payments"”), which are or become subject to the tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c) Section 8 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentpayment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1274 (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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled (i) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment, distribution or more payments benefit provided (with a "including, without limitation, the acceleration of any payment" including , distribution or benefit and the vesting acceleration of restricted stock, a exercisability of any stock option, ) to Executive or other non-cash for his benefit (whether paid or property), whether payable or distributed or distributable) pursuant to the terms of this Agreement or any other plan otherwise (a "Payment") would be subject, in whole or agreement with the Company or any affiliated company (collectivelyin part, "Change of Control Payments"), which are or become subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "CodeExcise Tax"), then the Executive shall be entitled to receive from the Company shall pay to Executive at the time specified below such amount an additional payment (the "Gross-up Up Payment") as may be necessary to place Executive in an amount such that the same after-tax position as if no portion net amount of the Change Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of Control Payments all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any amounts paid interest or penalties imposed with respect to Executive pursuant to such taxes) on the Gross-Up Payment provided for in this paragraph 5(cSection 5(f) had been subject and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Excise Tax. The Payment. (ii) All determinations required to be made under this Section 5(f), including whether and when the Gross-up Up Payment shall include, without limitation, reimbursement for any penalties is required and interest that may accrue in respect the amount of such Excise TaxGross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Executive's employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the "Accountants" shall mean Ernst & Young LLP or another accounting firm mutually acceptable to the Company and Employee. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: (A) deemed to pay federal Federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state and or local taxes if paid in such yearyear (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). If To the Excise Tax extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is subsequently entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f) (an "Overpayment" or "Underpayment," respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder at initially determined by the time the Gross-up Payment is madeAccountants, Executive shall promptly repay the Overpayment to the Company at Company; provided, however, that in the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the event any portion of the Gross-up Up Payment that would not have to be repaid to the Company has been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentto any Federal, plus interest on the amount state or local tax authority, repayment thereof shall not be required until actual refund or credit of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeportion has been made to Executive. In the event that the Company exhausts its remedies pursuant to Section 5(f)(iii) and Executive is required to make a payment of any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is madeTax, the Company shall make an additional promptly pay the Underpayment to or for Executive's benefit. (iii) 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 a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable after Executive is informed in respect writing of such excess claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (plus or such shorter period ending on the date that any payment of taxes, interest and and/or penalties payable with respect to such excess) at claim is due). If the time that Company notifies Executive in writing prior to the amount expiration of such excess is finally determined. The Gross-up Payment provided for above shall be paid on period that it desires to contest such claim, Executive shall: (a) give the 30th day Company any information reasonably requested by the Company relating to such claim; (or b) take such earlier date action in connection with contesting such claim as the Excise Tax becomes due and payable 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 taxing authoritiesCompany; (c) after it has been determined that cooperate with the Change of Control Payments Company in good faith in order to effectively contest such claim; and (or d) permit the Company to participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claims; provided, however, that if the amount Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax, income tax or employment tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined on or before such dayrepresentation and payment of all related costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including 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 interest 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 penalties thereon); providedmore appellate courts, however, that as the Company shall determine. The Company's control over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If (a) In the event that it shall be determined at any time that any payment by the Company to Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan otherwise (the “Subject Payments”) in connection with a change in the ownership or agreement with effective control of the Company or any affiliated company (collectivelyin the ownership of a substantial portion of the assets of the Company within the meaning of Code Section 280G, "Change of Control Payments"), which are or become would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code (or any successor provision thereto) by reason of 1986, being considered a “parachute payment,” within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes being hereafter collectively referred to as amended (the "Code"“Excise Tax”), then Executive shall be entitled to receive an additional payment in the Company shall pay to Executive at amount determined, and payable in the time specified below such amount manner, set forth in this Section 20 (collectively, the "“Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax”). The Gross-up Up Payment shall includebe in an amount such that, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining after reducing the amount of the Gross-up PaymentUp Payment by all applicable U.S. federal, Executive shall be deemed: state and local taxes (A) to pay federal income taxes computed at the highest maximum marginal rate of federal income taxation for the year in which rates applicable to Executive), including any Excise Tax imposed on the Gross-up Up Payment, there remains an amount of Gross-Up Payment equal to the Excise Tax imposed on the Subject Payments. Any Gross-Up Payment shall be paid by the Company to Executive on the date that is ninety (90) days following the closing date of the transaction to which such Excise Tax relates. (b) All determinations required to be made; made under this Section 20, including whether an Excise Tax is payable by Executive and the amount of such Excise Tax and the amount of any associated Gross-Up Payment, shall be made by a nationally recognized accounting firm (Bthe “Accounting Firm”) selected by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. The Company and Executive shall each provide the Accounting Firm access to pay and copies of any applicable books, records and documents in the possession of the Company or Executive, as the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by this Section 20(b). The federal, state and local income taxes at or other tax returns filed by Executive and the highest marginal rate of taxation for Company shall be prepared and filed on basis consistent with the calendar year in which the Gross-up Payment is to be made, net determination of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If Accounting Firm with respect to the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit payable by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If In the event that Executive becomes entitled to one or more any payments (with a "payment" including the vesting of restricted stockunder this Agreement, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement then if any such payments or any other plan compensation, benefit or agreement with other amount from Employer for the Company or any affiliated company benefit of Executive (collectively, "Change of Control Parachute Payments"), which are or become ) will be subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986(including any applicable interest and penalties, as amended (the "CodeExcise Tax"), the Company no Parachute Payment shall be reduced (except for required tax withholdings) and Employer shall pay to Executive at by the time specified below earlier of the date such Excise Tax is withheld from payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-up Up Payment") as may such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments and taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 6.6, shall be necessary equal to place the amount the Executive in the same after-tax position as would have received if no portion Excise Tax had been imposed. Employer shall reasonably determine in good faith whether any of the Change of Control Parachute Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been are subject to the Excise TaxTax and the amount of any Excise Tax and shall notify Executive of its determination. The Gross-up Payment Employer and Executive shall include, without limitation, reimbursement for any penalties file all tax returns and interest that may accrue reports regarding such Parachute Payments in respect of such Excise Taxa manner consistent with Employer's reasonable good faith determination. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: (A) deemed to pay federal income taxes at the highest marginal rate Tax Rate applicable at the time of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at Up Payment. In the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up a Parachute Payment is made, Executive shall repay to the Company Employer at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Up Payment that would not have been paid if attributable to such Excise Tax had been used in initially calculating the Gross-up Payment, reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1274(d)(1) of the Code or other applicable provision of the Code, but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment is madeUp Payment), the Company Employer shall make an additional Grossgross-up Payment payment in respect of such excess (plus any interest and or penalties payable with in respect to of such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided Employer shall reimburse Executive for above shall be paid on all reasonable fees, expenses, and costs related to determining the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change reasonableness of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise Employer position in connection with the determination and assessment this paragraph, preparation of any Excise Tax andtax return or other filing that is affected by any matter addressed in this paragraph and any audit, at its sole option, the Company may pursue litigation or forego other proceeding that is affected by any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority matter addressed in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderthis paragraph.

Excise Tax Gross-Up. If Executive In the event that the Officer becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Bank or the Holding Company or any affiliated company or from or pursuant to the terms of the Flushing Financial Corporation Employee Benefit Trust) (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "Code"“Excise Tax”), the Holding Company shall pay to Executive the Officer at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Officer, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this section 11, but before reduction for any federal, state or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing selected by the Holding Company and reasonably acceptable to the Officer (“Independent Auditors”), the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Holding Company’s Independent Auditors appointed pursuant to clause (i) above in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive the Officer shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Officer’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive the Officer shall repay to the Holding Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive the Officer or otherwise realized as a benefit by Executivethe Officer) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Holding Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determineddetermined (but in no event later than the end of the calendar year next following the calendar year in which the Officer remits the related taxes). The Gross-up Payment provided for above shall be paid on the 30th thirtieth day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise TaxTax (but in no event later than the end of the calendar year next following the calendar year in which the Officer remits the related taxes); provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Holding Company shall pay to Executive the Officer on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable Holding Company’s Independent Auditors appointed pursuant to Executiveclause (i) above, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executiveamount, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), shall be repaid by the Officer to the Holding Company within five (5) days after notice from the Holding Company of such determination. If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Holding Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Holding Company may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Holding Company's ’s control over any such proceedings shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder, hereunder and Executive the Officer shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive The Officer shall cooperate with the Holding Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to the Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 16, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to the Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If Independent Tax Counsel determines that the aggregate payments made to Executive becomes entitled under this Agreement and any other payments to one or more payments (with a Executive from NCE which constitute "paymentparachute payments" including the vesting of restricted stock, a stock optionas defined in Code Section 280G, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company successor provision thereto (collectively, "Change of Control Parachute Payments"), which are or become ) would be subject to the excise tax imposed by Code Section 4999 (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to then Executive at the time specified below such amount will receive an additional payment (the a "Gross-up Up Payment") as may be necessary to place in an amount determined by Independent Tax Counsel such that after payment by Executive in of all federal and state income and excise taxes (including any Excise Tax) imposed on the same afterGross-tax position as if no portion of the Change of Control Payments Up Payment and any amounts paid interest or penalties imposed with respect to such taxes, Executive pursuant to this paragraph 5(c) had been subject retains from the Gross-Up Payment an amount equal to the Excise Tax imposed on the payments. (a) If Independent Tax Counsel determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion that Executive has substantial authority not to report any Excise Tax on Executive's federal income tax return. If Executive is subsequently required to make a payment of any Excise Tax. The Gross, then Independent Tax Counsel shall determine the grossed-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect amount of such Excise Tax. For purposes of determining payment using the amount same principles as applied to calculation of the Gross-up Payment, Executive shall be deemed: Up Payment (A) referred to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the herein as a "Gross-up Payment is to be made; Up Underpayment") and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment Up Underpayment shall be promptly paid by NCE to or portion thereof cannot be finally determined on or before such day, for the Company benefit of Executive. (b) Executive shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided notify NCE in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment writing within 15 days of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised claim by the Internal Revenue Service or that, if successful, would require the payment by NCE of a Gross-Up Payment. If NCE notifies Executive in writing that it desires to contest such claim and that it will bear the costs and provide the indemnification as required by this subsection, Executive shall: (1) Give NCE any other taxing authority. Executive information reasonably requested by NCE relating to such claim. (2) Take such action in connection with contesting such claim as NCE shall cooperate reasonably request in writing from time to time, including, without limitation, accepting legal representation with the Company respect to such claim by an attorney reasonably selected by NCE. (3) Cooperate with NCE in good faith in order to effectively contest such claim. (4) Permit NCE to participate in any proceedings relating to the determination such claim. NCE shall bear and assessment of pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. NCE shall not take any position or action that would materially increase control all proceedings taken in connection with such contest. If NCE directs Executive to pay such claim and xxx for a refund, NCE 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. (c) If, after the receipt by Executive of an amount paid or advanced by NCE pursuant to this Section, Executive becomes entitled to receive any refund with respect to such Excise Tax, Executive shall within 10 days pay to NCE the Gross-up Up Payment hereunderor Gross-Up Underpayment related to the amount of such refund (together with any interest paid or credited thereon, after adjustment for any taxes applicable to such interest or repayment). (d) For purposes of this Sec. 4.5, "Independent Tax Counsel" means a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm, with expertise in the area of executive compensation tax law, who shall be selected by Executive and shall be reasonably acceptable to NCE. The fees and disbursements of Independent Tax Counsel shall be paid by NCE.

Excise Tax Gross-Up. If Executive In the event that the Officer becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Bank or the Holding Company or any affiliated company or from or pursuant to the terms of the Flushing Financial Corporation Employee Benefit Trust) (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Holding Company shall pay to Executive the Officer at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Officer, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this section 11, but before reduction for any federal, state or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Officer's adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing selected by the Holding Company and reasonably acceptable to the Officer ("Independent Auditors"), the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Holding Company's Independent Auditors appointed pursuant to clause (i) above in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive the Officer shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Officer's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Officer's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive the Officer shall repay to the Holding Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive the Officer or otherwise realized as a benefit by Executivethe Officer) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Holding Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th thirtieth day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Holding Company shall pay to Executive the Officer on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable Holding Company's Independent Auditors appointed pursuant to Executiveclause (i) above, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Holding Company to Executivethe Officer, payable on the fifth day after demand by the Holding Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Holding Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Holding Company may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Holding Company's control over any such proceedings shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder, hereunder and Executive the Officer shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive The Officer shall cooperate with the Holding Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company Corporation or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company Corporation shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company Corporation at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company Corporation shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company Corporation shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company Corporation and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company Corporation shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company Corporation to the Executive, payable on the fifth day after demand by the Company Corporation (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company Corporation shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company Corporation may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the CompanyCorporation's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company Corporation in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder).

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 18, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, but not limited to, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "CodeExcise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitationbut not be limited to, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For ) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this subparagraph (e), but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed to Executive for federal, state, or local income tax purposes because of determining the amount inclusion of the Gross-up Payment, Executive shall be deemed: (A) to pay federal Up Payment in Executive's adjusted gross income taxes at multiplied by the highest applicable marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and federal, state, or local income taxes at the highest marginal rate of taxation taxation, respectively, for the calendar year in which the Gross-up Up Payment is to be made, net . For purposes of determining whether any of the maximum reduction in federal income taxes which could Total Payments will be obtained from deduction of such state and local taxes if paid in such year. If subject to the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that and the amount of such reduction in Excise Tax is finally determined (but, if previously paid to Tax: 1. The Total Payments shall be treated as "parachute payments" within the taxing authorities, not prior to the time the amount meaning of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B280G(b)(2) of the Code. In , and all "excess parachute payments" within the event that meaning of Section 280G(b)(1) of the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above Code shall be paid on the 30th day (or such earlier date treated as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, howeverunless, that if and except to the amount extent that, in the written opinion of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, of the minimum amount of Total Payments (in whole or in part) do not constitute parachute payments, or such payments. The Company shall pay to Executive the remainder of such excess parachute payments (together with interest at in whole or in part) represent reasonable compensation for services actually rendered within the rate provided in Section 1274(b)(2)(B) meaning of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.Section

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company Corporation or any affiliated company (collectively, "“Change of Control Payments"”), which are or become subject to the tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company Corporation shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company Corporation at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company Corporation shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company Corporation shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company Corporation and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company Corporation shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company Corporation to the Executive, payable on the fifth day after demand by the Company Corporation (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company Corporation shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company Corporation may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's Corporation’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company Corporation in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder).

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, but not limited to, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "CodeExcise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitationbut not be limited to, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For ) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this subparagraph (e), but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed to Executive for federal, state, or local income tax purposes because of determining the amount inclusion of the Gross-up Payment, Executive shall be deemed: (A) to pay federal Up Payment in Executive's adjusted gross income taxes at multiplied by the highest applicable marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and federal, state, or local income taxes at the highest marginal rate of taxation taxation, respectively, for the calendar year in which the Gross-up Up Payment is to be made, net . For purposes of determining whether any of the maximum reduction in federal income taxes which could Total Payments will be obtained from deduction of such state and local taxes if paid in such year. If subject to the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that and the amount of such reduction in Excise Tax is finally determined (but, if previously paid to Tax: i. The Total Payments shall be treated as "parachute payments" within the taxing authorities, not prior to the time the amount meaning of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B280G(b)(2) of the Code. In , and all "excess parachute payments" within the event that meaning of Section 280G(b)(1) of the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above Code shall be paid on the 30th day (or such earlier date treated as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, howeverunless, that if and except to the amount extent that, in the written opinion of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, of the minimum amount of Total Payments (in whole or in part) do not constitute parachute payments, or such payments. The Company shall pay to Executive the remainder of such excess parachute payments (together with interest at in whole or in part) represent reasonable compensation for services actually rendered within the rate provided in meaning of Section 1274(b)(2)(B280G(b)(4) of the Code) as soon as the amount thereof can be determined. In the event that the amount Code in excess of the estimated payments exceeds base amount within the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in meaning of Section 1274(b)(2)(B280G(b)(3) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue Code or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating are otherwise not subject to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.Tax;

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent legal counsel, compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (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 shall indemnify and hold Executive harmless in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Executive shall notify the Company shall have the right to control all proceedings with in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross- Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive 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 it gives such notice to the Company (or such shorter period ending on the date that may arise any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the determination Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and assessment of pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income for employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall control all proceedings taken in connection with such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or to contest the claim in any interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx 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 or employment tax (including income or employment or 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 over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Section 10, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall cooperate (subject to the Company's complying with the Company in any proceedings relating 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 the Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and assessment the Company does not notify the Executive in writing of any Excise Tax 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 take any position or action that would materially increase be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up Up Payment hereunderrequired to be paid.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, but not limited to, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "CodeExcise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitationbut not be limited to, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this subparagraph (g), but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed to Executive for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. 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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by of Executive) the portion of the Gross-up Up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Up Payment, 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 the Gross-up Up Payment is mademade (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 Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is made, the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 18, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b) (1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent legal counsel, compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (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 shall indemnify and hold Executive harmless in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 16 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Executive shall notify the Company shall have the right to control all proceedings with in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive 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 it gives such notice to the Company (or such shorter period ending on the date that may arise any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the determination Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and assessment of pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall control all proceedings taken in connection with such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or to contest the claim in any interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx 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 or employment tax (including income or employment or 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 over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Section 10, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall cooperate (subject to the Company's complying with the Company in any proceedings relating 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 the Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and assessment the Company does not notify the Executive in writing of any Excise Tax 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 take any position or action that would materially increase be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up Up Payment hereunderrequired to be paid.

Excise Tax Gross-Up. If Executive becomes Rhein shall be entitled to one or more payments a cash payment (with a the "payment" including Excise Tax Gross-Up Payment") equal to the vesting amount of restricted stock, a stock option, or other non-cash benefit or property), whether excise taxes which Rhein is required to pay pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), as a result of any parachute payments as defined in Section 280G(b)(2)made by or on behalf of the Company shall pay to Executive at the time specified below such amount (the or any successor thereto, under this Agreement or otherwise, resulting in an "Gross-up Payment") excess parachute payment" as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided defined in Section 1274(b)(2)(B280G(b)(1) of the Code. In addition to the event that foregoing, the Excise Tax is determined Gross-Up Payment due to exceed Rhein under this Section 11.07 shall be increased by the aggregate of the amount taken into of federal, state and local income and excise taxes for which Rhein will be liable on account hereunder of the Excise Tax Gross-Up Payment to be made under this Section 11.07, such that Rhein will receive the Excise Tax Gross-Up Payment net of all income and excise taxes imposed on Rhein on account of the receipt of the Excise Tax Gross-Up Payment. The computation of the Excise Tax Gross-Up Payment shall be determined, at the time expense of the Company, by an independent accounting, actuarial or consulting firm selected by the Company. Such Excise Tax Gross-up Up Payment is made, shall be made at such time as the Company shall make an additional Gross-up Payment determine, in its sole discretion, but in no event later than the date five (5) business days before the due date, without regard to any extension, for filing Rhein's federal income tax return for the calendar year for which it is determined that excise taxes are payable under Section 4999 of the Code. Notwithstanding the foregoing, there shall be no duplication of payments by the Company under this Section 11.07 in respect of excise taxes under Section 4999 of the Code to the extent the Company is making payments in respect of such excess (plus excise taxes under any interest and penalties payable other arrangement with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determinedRhein. In the event that Rhein is ultimately assessed with excise taxes under Section 4999 of the Code which exceed the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided excise taxes used in computing Rhein's payment under this Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option11.07, the Company may pursue or forego its successor shall indemnify Rhein for such additional excise taxes plus any additional excise taxes, income taxes, interest and all administrative appeals, proceedings, hearings, penalties resulting from the additional excise taxes and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment indemnity hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (or any similar tax that may hereafter be imposed) (the “Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this Section 11, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: deemed (Ai) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (Bii) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (iii) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Up Payment, 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 the Gross-up Up Payment is mademade (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 Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is made, the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If In the event that any payment or benefit made or provided to or for the benefit of the Executive becomes entitled to one or more payments (in connection with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement and/or his employment with the Company or any affiliated company the termination thereof (collectively, "Change of Control Payments"), which are or become a “Payment” is determined to be subject to the any excise tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"or any successor to such Section), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includeExecutive, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the Payment (through withholding or otherwise), an additional amount of such excess is finally determined. The (a “Gross-up Payment provided for above shall be paid on Up Payment”) which, after the 30th day imposition of all income, employment, excise and other taxes, penalties and interest thereon, is equal to the sum of (or such earlier date as i) the Excise Tax becomes due on such Payment plus (ii) any penalty and payable to the taxing authorities) after it has been determined that the Change interest assessments associated with such Excise Tax. The determination of Control Payments (or whether any portion thereof) are Payment is subject to the an Excise Tax; providedTax and, howeverif so, that if the amount and time of such any Gross-up Up Payment or portion thereof cannot pursuant to this Section 10(b) shall be finally determined on or before such day, made by an independent auditor (the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors “Auditor”) jointly selected by the Company Parties and reasonably acceptable to Executivepaid by the Company. Unless the Executive agrees otherwise in writing, the Auditor shall be a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the minimum Company or any of its Affiliates. If the Parties cannot agree on the accounting firm to serve as the Auditor, then the Parties shall each select one accounting firm and those two accounting firms shall jointly select the accounting firm to serve as the Auditor. The Parties shall cooperate with each other in connection with any Proceeding or Claim relating to the existence or amount of any liability for Excise Tax. All expenses relating to any such paymentsProceeding or Claim (including attorneys’ fees and charges and all other expenses incurred by the Executive in connection therewith) shall be borne and paid by the Company. The Company Any payments payable under this Section 10(b) shall pay be subject to Executive the remainder of such payments (together with interest at the rate provided a Gross-Up Payment in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined Executive is subject to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect on such payment. This Section 10(b) shall apply irrespective of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which whether a Gross-up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment Change of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderControl has occurred.

Excise Tax Gross-Up. If Executive becomes entitled In the event that any payment or benefit received or to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether be received pursuant to the terms of this Agreement or (but determined without regard to any other plan or agreement with additional payment required under this Section 4) (the Company or any affiliated company (collectively, "Change of Control Severance Payments"), which are or become subject to would: (i) constitute a "parachute payment" within the tax ("Excise Tax") imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any similar or successor provision to 280G; and (ii) be subject to the Company excise tax imposed by Section 4999 of the Code or any similar or successor provision to Section 4999 (the "Excise Tax"), or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Employee shall pay be entitled to Executive at receive from the time specified below such amount Corporation an additional payment (the "Gross-up Up Payment") as may be necessary to place Executive in an amount such that after payment by the same afterEmployee of all taxes (including any Excise Tax) imposed upon the Gross-tax position as if no portion Up Payment, the Employee retains an amount of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject Gross-Up Payment equal to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise TaxTax imposed upon the Severance Payments. For purposes of determining the amount of the Gross-up Up Payment, Executive the Employee shall be deemeddeemed to: (Ai) to pay federal income taxes at the highest marginal rate rates of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (Bii) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereundertaxes.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, payments in connection with a Change In Control or the vesting of restricted stock, a stock option, option or other equity award or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code or a successor provision of 1986, as amended the Code (the "Code"“Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions by the Executive disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) (the “Repayment Date”) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeCode from the Repayment Date until paid. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid to the Executive (or to the IRS on behalf of the Executive) on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment subject to the Company’s compliance with the provisions of this Section. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company Corporation or any affiliated company (collectively, "“Change of Control Payments"”), which are or become subject to the tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company Corporation shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: : (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company Corporation at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company Corporation shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company Corporation shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company Corporation and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company Corporation shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company Corporation to the Executive, payable on the fifth day after demand by the Company Corporation (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company Corporation shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company Corporation may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's Corporation’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company Corporation in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company Corporation or any affiliated company (collectively, "“Change of Control Payments"”), which are or become subject to the tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company Corporation shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4.1(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company Corporation at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company Corporation shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company Corporation shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company Corporation and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company Corporation shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company Corporation to the Executive, payable on the fifth day after demand by the Company Corporation (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company Corporation shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company Corporation may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's Corporation’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company Corporation in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled In the event that any payment or benefit received or to one or more payments be received pursuant to this Agreement (with a "payment" including but determined without regard to any additional payment required under this Section 4) (the vesting of restricted stock, a stock option, or other non-cash benefit or property“Severance Payments”), whether pursuant to would: (i) constitute a “parachute payment” within the terms meaning of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company shall pay or any similar or successor provision to Executive at the time specified below such amount 280G; and (the "Gross-up Payment"ii) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the excise tax imposed by Section 4999 of the Code or any similar or successor provision to Section 4999 (the “Excise Tax. The ”), or any interest or penalties payable with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Employee shall be entitled to receive from the Corporation an additional payment (the “Gross-up Payment shall include, without limitation, reimbursement for Up Payment”) in an amount such that after payment by the Employee of all taxes (including any penalties and interest that may accrue in respect of such Excise Tax) imposed upon the Gross-Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Severance Payments. For purposes of determining the amount of the Gross-up Up Payment, Executive the Employee shall be deemeddeemed to: (Ai) to pay federal income taxes at the highest marginal rate rates of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (Bii) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereundertaxes.

Excise Tax Gross-Up. If In the event that the Executive becomes shall become entitled to one payments and/or benefits provided by this Agreement or more payments any other amounts in the “nature of compensation” (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or any affiliated company such person) as a result of such change in ownership or effective control (collectively, "Change of Control collectively the “Company Payments"”), which are or become and such Company Payments will be subject to the tax ("the “Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), and any similar tax that may hereafter be imposed by any taxing authority) the Company shall pay to the Executive at the time specified in subsection (d) below such (x) an additional amount (the "“Gross-up Up Payment"”) as may be necessary to place Executive in such that the same after-tax position as if no portion net amount retained by the Executive, after deduction of any Excise Tax on the Change of Control Company Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includeU.S. federal, without limitationstate, reimbursement and for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal local income taxes at the highest marginal rate of federal income taxation for the year in which or payroll tax upon the Gross-up Payment is to be made; and provided for by this paragraph (B) to pay a), but before deduction for any applicable state U.S. federal, state, and local income taxes at or payroll tax on the Company Payments, shall be equal to the Company Payments and (y) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income multiplied by the highest applicable marginal rate of taxation federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Up Payment is to be made. Notwithstanding the foregoing, net if it shall be determined that the Executive is entitled to a Gross-Up Payment, but that if the Company Payments (other than that portion valued under Treasury Regulation Section 1.280G, Q&A 24(c)) (the “Cash Payments”) are reduced by the amount necessary such that the receipt of the maximum reduction Company Payments would not give rise to any Excise Tax (the “Reduced Payment”) and the Reduced Payment would not be less than 95% of the Cash Payment, then no Gross-Up Payment shall be made to the Executive and the Cash Payments, in federal income taxes which could the aggregate, shall be obtained from deduction of such state and local taxes if paid in such yearreduced to the Reduced Payments. If the Excise Tax Reduced Payments is subsequently determined to be less than effective, payments shall be reduced in the amount taken into account hereunder at following order (1) acceleration of vesting of any stock options for which the time exercise price exceeds the Gross-up Payment is madethen fair market value, (2) any cash severance based on a multiple of Base Salary or Bonus, (3) any other cash amounts payable to the Executive, (4) any benefits valued as parachute payments; and (5) acceleration of vesting of any equity not covered by (1) above, unless the Executive shall repay elects another method of reduction by written notice to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount change of such reduction is refunded to Executive ownership or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeeffective control. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any court ultimately makes a determination that the excess parachute payments plus the base amount is an amount other taxing authority. Executive than as determined initially, an appropriate adjustment shall cooperate be made with the Company in any proceedings relating regard to the Gross-Up Payment or Reduced Payment, as applicable to reflect the final determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderresulting impact on whether the preceding paragraph applies.

Excise Tax Gross-Up. If Executive In the event that the Officer becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Bank or the Holding Company or any affiliated company or from or pursuant to the terms of the Flushing Financial Corporation Employee Benefit Trust) (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "Code"“Excise Tax”), the Holding Company shall pay to Executive the Officer at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by the Officer, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this section 11, but before reduction for any federal, state or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) the Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing selected by the Holding Company and reasonably acceptable to the Officer (“Independent Auditors”), the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Holding Company’s Independent Auditors appointed pursuant to clause (i) above in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive the Officer shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of the Officer’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in the Officer’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive the Officer shall repay to the Holding Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive the Officer or otherwise realized as a benefit by Executivethe Officer) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Holding Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th thirtieth day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Holding Company shall pay to Executive the Officer on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable Holding Company’s Independent Auditors appointed pursuant to Executiveclause (i) above, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (amount together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), shall be repaid by the Officer to the Holding Company within five (5) days after notice from the Holding Company of such determination. If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Holding Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Holding Company may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Holding Company's ’s control over any such proceedings shall be limited to issues with respect to which a Gross-up Payment would be payable hereunder, hereunder and Executive the Officer shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive The Officer shall cooperate with the Holding Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder. Notwithstanding any contrary provision in this section 11 to the extent necessary in order to avoid penalties under Section 409A of the Code, payments scheduled to be paid upon termination of employment shall instead be paid six (6) months after termination of employment.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(h) had been subject to the Excise Tax. The Gross-Gross- up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); providedPROVIDED, howeverHOWEVER, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If (a) In the event that any payments or benefits to which the Executive becomes entitled in accordance with the provisions of this Restated Agreement or any other agreement with the Company constitutes a parachute payment under Section 280G of the Code (collectively, the “Parachute Payment”) subject to the excise tax imposed under Section 4999 of the Code or any interest or penalties related to such excise tax (with such excise tax and related interest and penalties to be collectively referred to as the “Excise Tax”), then the Executive will be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in a dollar amount such that after payment of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains a net amount equal to the Excise Tax imposed upon the aggregate Orachute Payment. (b) All determinations as to whether any of the payments or benefits to which the Executive becomes entitled in accordance with the provisions of this Restated Agreement or any other agreement with the Company constitute a Parachute payment, whether a Gross-Up Payment is required with respect to any Parachute Payment, the amount of such Gross-Up Payment, and any other amounts relevant to the calculation of such Gross-Up Payment, will be made by an independent registered public accounting firm selected by the Company from among the largest four accounting firms in the United States (the “Accounting Firm”). Such Accounting Firm will make the applicable determinations (the Gross-Up Determination”), together with detailed supporting calculations regarding the amount of the Excise Tax, any required Gross-Up Payment and any other relevant matter, within thirty (30) days after the date of the Executive’s Separation from Service. The Gross-Up Determination made by the Accounting Firm will be binding upon both the Executive and the Company. The Gross-Up Payment (if any) determined on the basis of the Gross-Up Determination shall be paid to the Executive or on the Executive’s behalf with ten (10) business days after the completion of such Determination or (if later) at the time the related Excise Tax is remitted to the appropriate tax authorities. (c) In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be greater than the Excise Tax liability taken into account for purposes of any Gross-Up Payment or Payments initially made to the Executive pursuant to the provisions of Section 4.4(a), then within thirty (30) days following that Final Determination, the Executive shall notify the Company of such determination, and the Accounting Firm shall, within thirty (30) days thereafter, make a new Excise Tax calculation based upon that Final Determination and provide both the Executive and the Company with the supporting calculations for any supplemental Gross-Up Payment attributable to that excess Excise Tax liability. The Company shall make the supplemental Gross-Up payment to the Executive within ten (10) business days following the completion of the applicable calculations pr (if later) at the time such excess tax liability is remitted to the appropriate tax authorities. In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be less than the Excise Tax liability taken into account for purposes of any Gross-Up Payment initially made to the Executive pursuant to the provisions of Section 4.4(a), then the Executive shall refund to the Company, promptly upon receipt (but in no event later than ten (10) business days after such receipt), any federal or state tax refund attributable to the Excise Tax overpayment. For purposes of this Section 4.4(c), a “Final Determination” means an audit adjustment by the Internal Revenue Service that is either (i) agreed to by both the Executive and the Company or (ii) sustained by a court of competent jurisdiction in a decision with which both the Executive and the Company concur or with respect to which the period within which an appeal may be filed has lapsed without a notice of appeal being filed. (d) Should the Accounting Firm determine that any Gross-Up Payment made to the Executive was in fact more than the amount actually required to be paid to the Executive in accordance with the provisions of Section 4.4(a), then the Executive will, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such overpayment. Furthermore, should the Company decide to contest any assessment by the Internal Revenue Service of an Excise Tax on one or more payments or benefits provided the Executive under this Restated Agreement or otherwise, the Executive will comply with all reasonable actions requested by the Company in connection with such proceedings, but shall not be required to incur any out-of-pocket costs in so doing. (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant e) Notwithstanding anything to the terms of contrary in the foregoing any Gross-Up Payments due the Executive under this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become Section 4.4 shall be subject to the tax ("Excise Tax") imposed by hold-back provisions of Section 4999 4.3(b). In addition, no Gross-Up Payment shall be made later than the end of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for following the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income related taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay are remitted to the Company at the appropriate tax authorities or such other specified time or schedule that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in may be permitted under Section 1274(b)(2)(B) 409A of the Code. In To the event that extent the Executive becomes entitled to any reimbursement of expenses incurred at the direction of the Company in connection with any tax audit or litigation addressing the existence or amount of the Excise Tax, such reimbursement shall be paid to the Executive no later than the close of the calendar year following the calendar year in which the Excise Tax that is determined the subject of such audit or litigation is paid by the Executive. If no Excise Tax liability is found to exceed the amount taken into account hereunder at the time the Gross-up Payment is madebe due as a result of such audit or litigation, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above reimbursement shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that Executive no later than the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, close of the minimum amount of such payments. The Company shall pay to Executive calendar year following the remainder of such payments (together with interest at calendar year in which the rate provided in Section 1274(b)(2)(B) audit is completed or there is a final and non-appealable settlement or other resolution of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderlitigation.

Excise Tax Gross-Up. (a) If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock optionany payment under this Agreement, or under any other non-cash benefit agreement with or propertyplan of the Company (in the aggregate, “Total Payments”), whether pursuant to the terms of this Agreement would constitute an “excess parachute payment” as defined in Section 280G (or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax"successor provision) imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended (the "Code"), then the Company shall pay to the Executive at the time specified below such an additional amount (the "“Gross-up Up Payment"”) as may be necessary to place such that the net amount retained by the Executive in the same after-after deduction of any excise tax position as if no portion imposed under Section 4999 (or any successor provision) of the Change of Control Payments Code and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any interest charges or penalties and interest that may accrue in respect of the imposition of such excise tax (collectively, the “Excise Tax”) (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 2(a), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-up Up Payment, the Executive shall be deemed: (A) deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation for in the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s domicile for income tax purposes on the calendar year in which date the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could that may be obtained from the deduction of such state and local taxes taxes. Notwithstanding the foregoing, if paid in such year. If it shall be determined that the Executive is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excise Tax if the Total Payments were reduced by an amount that is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion 10% of the Gross-up Payment Total Payments that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in be treated as “parachute payments” under Section 1274(b)(2)(B280G (or any successor provision) of the Code. In , then the event amounts payable to the Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax is determined to exceed (the amount taken into account hereunder at the time the “Safe Harbor Cap”), and no Gross-up Up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable made to the taxing authorities) after it has been determined that Executive. For purposes of reducing the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; providedSafe Harbor Cap, however, that if only amounts payable under this Agreement (and no other Total Payments) shall be reduced. If the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, reduction of the minimum amount amounts payable hereunder would not result in a reduction of such paymentsthe Total Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this provision. The Company shall pay the Gross-Up Payment, if any, on the first day of the seventh (7th) month following the month in which the Separation from Service occurs. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the remainder excise tax to be due), then the Company shall promptly (but in no event later than the end of the calendar year following the year in which the Executive remits such payments (together with interest at taxes) reimburse the rate provided in Executive for the amount of excise taxes paid by the Executive under Section 1274(b)(2)(B) 4999 of the Code) as soon as , plus an amount equal to the amount thereof can be determinedadditional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole optionevent, the Company may pursue or forego any and all administrative appealsGross-Up Payment, proceedingsif any, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised reduced by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereundersuch prior payment.

Excise Tax Gross-Up. If Executive becomes entitled (i) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment, distribution or more payments benefit provided (with a "including, without limitation, the acceleration of any payment" including , distribution or benefit and the vesting acceleration of restricted stock, a exercisability of any stock option, ) to Executive or other non-cash for his benefit (whether paid or property), whether payable or distributed or distributable) pursuant to the terms of this Agreement or any other plan otherwise (a “Payment”) would be subject, in whole or agreement with the Company or any affiliated company (collectivelyin part, "Change of Control Payments"), which are or become subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"“Excise Tax”), then the Executive shall be entitled to receive from the Company shall pay to Executive at the time specified below such amount an additional payment (the "“Gross-up Up Payment"”) as may be necessary to place Executive in an amount such that the same after-tax position as if no portion net amount of the Change Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of Control Payments all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any amounts paid interest or penalties imposed with respect to Executive pursuant to such taxes) on the Gross-Up Payment provided for in this paragraph 5(cSection 5(f) had been subject and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Excise Tax. The Payment. (ii) All determinations required to be made under this Section 5(f), including whether and when the Gross-up Up Payment shall include, without limitation, reimbursement for any penalties is required and interest that may accrue in respect the amount of such Excise TaxGross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Executive’s employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the “Accountants” shall mean Ernst & Young LLP or another accounting firm mutually acceptable to the Company and Executive. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: (A) deemed to pay federal Federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state and or local taxes if paid in such yearyear (determined with regard to limitations on deductions based upon the amount of Executive’s adjusted gross income). If To the Excise Tax extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is subsequently entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants’ determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f) (an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder at initially determined by the time the Gross-up Payment is madeAccountants, Executive shall promptly repay the Overpayment to the Company at Company; provided, however, that in the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the event any portion of the Gross-up Up Payment that would not have to be repaid to the Company has been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentto any Federal, plus interest on the amount state or local tax authority, repayment thereof shall not be required until actual refund or credit of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeportion has been made to executive. In the event that the Company exhausts its remedies pursuant to Section 5(f)(iii) and Executive is required to make a payment of any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is madeTax, the Company shall make an additional promptly pay the Underpayment to or for Executive’s benefit. (iii) 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 a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable after Executive is informed in respect writing of such excess claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (plus or such shorter period ending on the date that any payment of taxes, interest and and/or penalties payable with respect to such excess) at claim is due). If the time that Company notifies Executive in writing prior to the amount expiration of such excess is finally determined. The Gross-up Payment provided for above shall be paid on period that it desires to contest such claim, Executive shall: (a) give the 30th day Company any information reasonably requested by the Company relating to such claim; (or b) take such earlier date action in connection with contesting such claim as the Excise Tax becomes due and payable 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 taxing authoritiesCompany; (c) after it has been determined that cooperate with the Change of Control Payments Company in good faith in order to effectively contest such claim; and (or d) permit the Company to participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claims; provided, however, that if the amount Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax, income tax or employment tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined on or before such dayrepresentation and payment of all related costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including 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 interest 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 penalties thereon); providedmore appellate courts, however, that as the Company shall determine. The Company's ’s control over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Notwithstanding any other provision of this Section 5(f), (i) all taxes and related expenses described in this Section 5(f) shall be paid or reimbursed no later than the end of the year following the year in which the applicable taxes are remitted or, in the case of expenses with respect to which there is no remittance of taxes, no later than the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, and (ii) if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, no tax or related expense shall cooperate with be paid or reimbursed hereunder during the Company in any proceedings relating to six-month period beginning on the determination and assessment date of any Excise Tax and shall not take any position or action that would materially increase the amount such termination of any Gross-up Payment hereunderemployment.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"’) (or any similar tax that may hereafter be imposed) (the “Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 18, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1 274(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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c) Section 8 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentpayment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled (i) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment, distribution or more payments benefit provided (with a "including, without limitation, the acceleration of any payment" including , distribution or benefit and the vesting acceleration of restricted stock, a exercisability of any stock option, ) to Employee or other non-cash for his benefit (whether paid or property), whether payable or distributed or distributable) pursuant to the terms of this Agreement or any other plan otherwise (a “Payment”) would be subject, in whole or agreement with the Company or any affiliated company (collectivelyin part, "Change of Control Payments"), which are or become subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"“Excise Tax”), then the Employee shall be entitled to receive from the Company shall pay to Executive at the time specified below such amount an additional payment (the "“Gross-up Up Payment"”) as may be necessary to place Executive in an amount such that the same after-tax position as if no portion net amount of the Change Payment and the Gross-Up Payment retained by Employee after the calculation and deduction of Control Payments all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any amounts paid interest or penalties imposed with respect to Executive pursuant to such taxes) on the Gross-Up Payment provided for in this paragraph 5(cSection 10(e) had been subject and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Excise Tax. The Payment. (ii) All determinations required to be made under this Section 10(e), including whether and when the Gross-up Up Payment shall include, without limitation, reimbursement for any penalties is required and interest that may accrue in respect the amount of such Excise TaxGross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Employee and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Employee’s employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the “Accountants” shall mean Ernst & Young LLP or another accounting firm mutually acceptable to the Company and Employee. For purposes of determining the amount of the Gross-up Up Payment, Executive Employee shall be deemed: (A) deemed to pay federal Federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state and or local taxes if paid in such yearyear (determined with regard to limitations on deductions based upon the amount of Employee’s adjusted gross income). If To the Excise Tax extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Employee is subsequently entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Employee of the Accountants’ determination. Any determination by the Accountants shall be binding upon the Company and Employee, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 10(e) (an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder at initially determined by the time Accountants, Employee shall promptly repay the Gross-up Payment is made, Executive shall repay Overpayment to the Company at Company; provided, however, that in the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the event any portion of the Gross-up Up Payment that would not have to be repaid to the Company has been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentto any Federal, plus interest on the amount state or local tax authority, repayment thereof shall not be required until actual refund or credit of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeportion has been made to Employee. In the event that the Company exhausts its remedies pursuant to Section 10(e) (iii) and Employee is required to make a payment of any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is madeTax, the Company shall make an additional promptly pay the Underpayment to or for Employee’s benefit. (iii) Employee 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 a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable after Employee is informed in respect writing of such excess claim and shall apprise the Company 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 Employee gives such notice to the Company (plus or such shorter period ending on the date that any payment of taxes, interest and and/or penalties payable with respect to such excess) at claim is due). If the time that Company notifies Employee in writing prior to the amount expiration of such excess is finally determined. The Gross-up Payment provided for above shall be paid on period that it desires to contest such claim, Employee shall: (a) give the 30th day Company any information reasonably requested by the Company relating to such claim; (or b) take such earlier date action in connection with contesting such claim as the Excise Tax becomes due and payable 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 taxing authoritiesCompany; (c) after it has been determined that cooperate with the Change of Control Payments Company in good faith in order to effectively contest such claim; and (or d) permit the Company to participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claims; provided, however, that if the amount Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Employee for and hold Employee harmless from, on an after-tax basis, any Excise Tax, income tax or employment tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined on or before such dayrepresentation and payment of all related costs and expenses. Without limiting the foregoing provisions of this Section 10(e), the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including 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 interest 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 penalties thereon); providedmore appellate courts, however, that as the Company shall determine. The Company's ’s control over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and Executive Employee shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Executive Notwithstanding any other provision of this Section 10(e), (i) all taxes and related expenses described in this Section 10(e) shall cooperate be paid or reimbursed no later than the end of the year following the year in which the applicable taxes are remitted or, in the case of expenses with respect to which there is no remittance of taxes, no later than the Company end of the year following the year in any proceedings relating to which the determination audit is completed or there is a final and assessment nonappealable settlement or other resolution of any Excise Tax the litigation, and (ii) if the Employee is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, no tax or related expense shall not take any position be paid or action that would materially increase reimbursed hereunder during the amount six-month period beginning on the date of any Gross-up Payment hereundersuch termination of employment.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, but not limited to, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "CodeExcise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitationbut not be limited to, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For ) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this subparagraph (d), but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed to Executive for federal, state, or local income tax purposes because of determining the amount inclusion of the Gross-up Payment, Executive shall be deemed: (A) to pay federal Up Payment in Executive"s adjusted gross income taxes at multiplied by the highest applicable marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and federal, state, or local income taxes at the highest marginal rate of taxation taxation, respectively, for the calendar year in which the Gross-up Up Payment is to be made, net . For purposes of determining whether any of the maximum reduction in federal income taxes which could Total Payments will be obtained from deduction of such state and local taxes if paid in such year. If subject to the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that and the amount of such reduction in Excise Tax is finally determined (but, if previously paid to Tax: i) The Total Payments shall be treated as "parachute payments" within the taxing authorities, not prior to the time the amount meaning of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B280G(b)(2) of the Code. In , and all "excess parachute payments" within the event that meaning of Section 280G(b)(1) of the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above Code shall be paid on the 30th day (or such earlier date treated as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, howeverunless, that if and except to the amount extent that, in the written opinion of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, of the minimum amount of Total Payments (in whole or in part) do not constitute parachute payments, or such payments. The Company shall pay to Executive the remainder of such excess parachute payments (together with interest at in whole or in part) represent reasonable compensation for services actually rendered within the rate provided in meaning of Section 1274(b)(2)(B280G(b)(4) of the Code) as soon as the amount thereof can be determined. In the event that the amount Code in excess of the estimated payments exceeds base amount within the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in meaning of Section 1274(b)(2)(B280G(b)(3) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue Code or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating are otherwise not subject to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.Tax;

Excise Tax Gross-Up. If Executive becomes you become entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, or other any non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectivelyall such amounts, exclusive of additional payments pursuant to this Section 7, being referred to herein as the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive you at the time specified below such an additional amount (the "Gross-up Up Payment") as may such that the net amount retained by you, after reduction for (x) any Excise Tax (including any penalties or interest thereon) on the Total Payments and on the Gross-Up Payment and (y) any federal, state, or local income or employment tax on the Gross-Up Payment, shall be necessary equal to place Executive in the same after-sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax position as if no portion purposes because of the Change inclusion of Control the Gross-Up Payment in your adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and any amounts paid to Executive pursuant to this paragraph 5(cthe amount of such Excise Tax, (i) had been the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent tax counsel or auditors of nationally recognized standing selected by the Company and reasonably acceptable to you ("Independent Advisors"), the Total Payments do not constitute parachute payments, or such excess parachute payments in excess of the base amount within the meaning of Section 280G(b)(3) of the Code represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or are otherwise not subject to the Excise Tax; and (ii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The If more than one Gross-Up Payment is made (including for this purpose any parachute excise tax gross-up payment pursuant to the terms of any other plan, arrangement, or agreement with the Company), the amount of each Gross-Up Payment shall include, without limitation, reimbursement for be computed so as not to duplicate any penalties and interest that may accrue in respect of such Excise Taxprior Gross-Up Payment. For purposes of determining the amount of the Gross-up Up Payment, Executive you shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently year (determined without regard to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that limitations on deductions based upon the amount of such reduction in Excise Tax is finally determined your adjusted gross income); and (butC) to have otherwise allowable deductions for federal, if previously paid state, and local income tax purposes at least equal to those disallowed because of the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion inclusion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determinedyour adjusted gross income. The Gross-up Up Payment provided for above shall be paid on or before the earlier of (i) the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax, or (ii) the date on which the Excise Tax becomes due and payable to the taxing authorities; provided, however, that if the amount of such Gross-up Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive you on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined by the Independent Advisors to have been due, such excess you shall constitute a loan by repay to the Company to Executivethe amount of such excess, payable on the fifth day after demand by the Company (together with plus interest at the rate provided in Section 1274(b)(2)(B) of the Code, within five days following the Company's demand therefor. In the event that the Excise Tax is subsequently determined, in a final judicial determination or a final administrative settlement to which you are a party (a "Final Determination"), to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, you shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to you or otherwise realized as a benefit by you), the portion of the Gross-Up Payment that would not have been paid if such Excise Tax as finally determined had been applied in initially calculating the Gross-Up Payment, 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 in a Final Determination to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess if finally determined. -8- The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, and Executive you shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive You shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. (a) If any payment to or in respect of the Executive becomes entitled to one by the Company or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property)any affiliate, whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company otherwise (collectively, "Change of Control Payments"a “Payment”), which are or become subject is determined to the tax ("Excise Tax"be a “parachute payment” as defined in Section 280G(b)(2) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (such payment, a “Parachute Payment”) and also to be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, being herein collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment from the Company (the “ Gross-Up Payment ”) in an amount such that the net amount of such additional payment retained by the Executive, after payment of all federal, state and local income and employment and Excise Taxes imposed on the Gross-Up Payment, shall pay be equal to the Excise Tax imposed on the Payment. Notwithstanding the foregoing or any other provision of this Agreement, if it shall be determined that the Executive is entitled to a Gross-Up Payment but that the net present value of the Parachute Payments (calculated at the time specified below such amount discount rate in effect under Section 280G of the Code) do not exceed 110% of the Reduced Amount (the "as defined below), then no Gross-up Payment"Up Payment shall be made to the Executive and the aggregate amount of the Parachute Payments otherwise payable under this Agreement shall be reduced to the Reduced Amount; provided, that the foregoing reduction shall not be made if the Accounting Firm (as defined below) as may be necessary to place Executive in determines that the same net after-tax position as if no portion benefit of the Change payments to the Executive without the reduction imposed is more than 110% of Control the net after-tax benefit of the payments to the Executive with the reduction imposed. For purposes of the foregoing, the term “Reduced Amount” shall mean the greatest amount of Parachute Payments and any amounts that could be paid to the Executive pursuant such that the receipt of such Parachute Payments would not give rise to this paragraph 5(c) had been subject to the any Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect determination of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive which Payments shall be deemed: reduced pursuant to this Section 3(h)(a) shall be made by an independent accounting firm of recognized standing selected by the Company and reasonably acceptable to the Executive (A) the “Accounting Firm”), in consultation with the Executive and shall be reasonably acceptable to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to him, and such determination shall be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder made at the time the Gross-up Payment it is made, Executive shall repay determined whether any payments made to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax. (b) Subject to the provisions of Section 3(h)(c) hereof, all determinations required to be made under this Section 3(h), including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Accounting Firm. The initial determination of whether a Gross-Up Payment is required, and if so, the amounts of the Excise Tax and Gross-Up Payment, shall be determined by the Accounting Firm, whose written report shall be delivered to the Company and to the Executive. Not later than sixty (60) days after any Payment, the Accounting Firm shall determine whether a Gross-Up Payment is due with respect to such Payment, and such Gross-Up Payment shall be paid by the Company to the Executive (except to the extent any portion thereof is paid to the taxing authorities on behalf of the Executive) not later than ten (10) days following the Accounting Firm’s determination. The Executive and the Company shall cooperate in good faith as to the treatment of a Payment for tax reporting and withholding purposes. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but in no event later than the earlier of (i) thirty (30) days after the Executive is informed in writing of such claim or (ii) fifteen (15) days before the date on which such claim is requested to be paid, 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 the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: i. give the Company any information reasonably requested by the Company relating to such claim; ii. take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to the Executive; iii. cooperate with the Company in good faith in order effectively to contest such claim; and iv. permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless for any Excise Tax or federal, state and local income and employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 3(h)(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or to contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the amount of Company directs the Executive to pay such Gross-up Payment or portion thereof cannot be finally determined on or before such dayclaim and xxx for a refund, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by advance the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay payment to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on an after-tax basis, and shall hold the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of Executive harmless from any Excise Tax andor federal, at its sole option, the Company may pursue state or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax local income or employment tax (including any interest or penalties thereon); providedwith respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance. The Company’s control of the contest, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest contest, as the case may by, any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If In the event that the aggregate of all payments or benefits made or provided to, or that may be made or provided to, the Executive becomes entitled to one or more payments under this Agreement and under all other plans, programs and arrangements of the Company (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to ) (the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise TaxAGGREGATE PAYMENT") imposed by is determined to constitute a "parachute payment," as such term is defined in Section 4999 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "CodeCODE"), the Company shall pay to Executive at the Executive, prior to the time specified below any excise tax imposed by Section 4999 of the Code, as amended ("EXCISE TAX") is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income, payroll and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be paid to the Executive and the time of payment pursuant to this Section 5(e) shall be made by an independent auditor (the "Gross-up PaymentAUDITOR") jointly selected by the Company and the Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two (2) years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on the firm to serve as may be necessary the Auditor, then the Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to place Executive serve as the Auditor. Notwithstanding the foregoing, in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest event that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment Executive's Excise Tax liability is subsequently determined to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If greater than the Excise Tax liability with respect to which an initial payment to the Executive under this Section 5(e) has been made, the Company shall pay to the Executive an additional amount with respect to such additional Excise Tax (and any interest and penalties thereon) at the time and in the amount determined by the Auditor so as to make the Executive whole, on an after-tax basis, with respect to such Excise Tax (and any interest and penalties thereon) and such additional amount paid by the Company. In the event the amount of the Executive's Excise Tax liability is subsequently determined to be less than the amount taken into account hereunder at Excise Tax liability with respect to which an initial payment to the time Executive has been made, the Gross-up Payment Executive shall, as soon as practical after the determination is made, Executive shall repay pay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan overpayment by the Company to ExecutiveCompany, payable on the fifth day after demand reduced by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderrelevant taxes already paid by the Executive and not refundable, all as determined by the Auditor. The Executive and the Company shall cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Executive in connection therewith shall be paid by the Company promptly upon notice of demand from the Executive.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 19, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(h) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); providedPROVIDED, howeverHOWEVER, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company Company, Walbro, or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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 before a Change of Control within the meaning of Section 280G(b)(4)(B) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a If more than one Gross-up Payment would be payable hereunderis made, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any each Gross-up Payment hereundershall be computed so as not to duplicate any prior Gross-up Payment.

Excise Tax Gross-Up. (a) If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement, the Employment Agreement or any other plan Plan or agreement with the Company or any of its affiliated company companies (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended or any similar tax that may hereafter be imposed (the "CodeExcise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. ) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. (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) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensa tion for services actually rendered before a Change of Control within the meaning of Section 280G(b)(4)(B) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (c) For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. . (d) The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a If more than one Gross-up Payment would be payable hereunderis made, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any each Gross-up Payment hereundershall be computed so as not to duplicate any prior Gross-up Payment. (e) Notwithstanding the foregoing, the Executive may at any time elect to demand the payment of the amount which the Executive, in accordance with an Opinion of counsel to the Executive, determines to be the Gross-Up Payment. Any such demand by the Executive shall be made by delivery to the Company of a written notice which specifies the Gross-Up Payment determined by the Executive and an Opinion of counsel to the Executive regarding such Gross- Up Payment (such written notice and Opinion collectively, the "Executive's Determination"). Within fourteen (14) days after the Executive's delivery of the Executive's Determination to the Company, the Company shall: (i) pay to the Executive the Gross-Up Payment set forth in the Executive's Determination (ii) the Company shall deliver to the Executive a written notice specifying the Gross-Up Payment determined by the Company together with an Opinion of the Company's counsel regarding such Gross-Up Payment (such written notice and Opinion collectively, the "Company's Determination") and shall pay to the Executive the Gross-Up Payment specified in the Company's Determination.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or could become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For ) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of determining the amount inclusion of the Gross-up Payment, Executive shall be deemed: (A) to pay federal Payment in Executive's adjusted gross income taxes at multiplied by the highest applicable marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and federal, state, or local income taxes at the highest marginal rate of taxation taxation, respectively, for the calendar year in which the Gross-up Payment is to be made, net . For purposes of determining whether any of the maximum reduction in federal income taxes which could Total Payments will be obtained from deduction of such state and local taxes if paid in such year. If subject to the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that and the amount of such reduction in Excise Tax is finally determined Tax: (but, if previously paid to a) The Total Payments shall be treated as "parachute payments" within the taxing authorities, not prior to the time the amount meaning of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B280G(b)(2) of the Code. In , and all "excess parachute payments" within the event that meaning of Section 280G(b)(1) of the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above Code shall be paid on the 30th day (or such earlier date treated as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, howeverunless, that if and except to the amount extent that, in the written opinion of such Gross-up Payment or portion thereof cannot be finally determined on or before such dayindependent legal counsel, the Company shall pay to Executive on such day an estimate, as determined by counsel compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, of the minimum amount of Total Payments (in whole or in part) do not constitute parachute payments, or such payments. The Company shall pay to Executive the remainder of such excess parachute payments (together with interest at in whole or in part) represent reasonable compensation for services actually rendered within the rate provided in meaning of Section 1274(b)(2)(B280G(b)(4) of the CodeCode in excess of the base amount within the meaning of Section 280G(b)(3) as soon as of the amount thereof can be determined. In Code or are otherwise not subject to the event that the Excise Tax; (b) The amount of the estimated Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments exceeds within the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in meaning of Section 1274(b)(2)(B280G(b)(1) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax Code (including any interest or penalties thereonafter applying clause (a) above); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.and

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent legal counsel, compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (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 shall indemnify and hold Executive harmless in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; providedPROVIDED, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Executive shall notify the Company shall have the right to control all proceedings with in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive 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 it gives such notice to the Company (or such shorter period ending on the date that may arise any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the determination Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and assessment of pay directly all costs and expenses (includ ing additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall control all proceedings taken in connection with such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or to contest the claim in any interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and sue xxx 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 or employment tax (including income or employment or 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 over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. If, after the receipt by the Executive of an amount advanced by the Company pursuant to this Section 10, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall cooperate (subject to the Company's complying with the Company in any proceedings relating 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 the Executive of an amount advanced by the Company pursuant to this Section 10, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and assessment the Company does not notify the Executive in writing of any Excise Tax 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 take any position or action that would materially increase be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up Up Payment hereunderrequired to be paid.

Excise Tax Gross-Up. If Executive In the event that Employee becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement or agreement with the Company Employer or any affiliated company company) (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), (or any similar tax that may hereafter be imposed) (the Company "Excise Tax"), Employer shall pay to Executive Employee at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Employee, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 13, but before reduction for any federal, state or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state or local income tax purposes because of the inclusion of the Gross-up Payment in Employee's adjusted gross income multiplied by the highest applicable marginal rate of federal, state or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) the Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing selected by Employer and reasonably acceptable to Employee ("Independent Auditors"), the Total Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable -13- 17 compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Employer's Independent Auditors appointed pursuant to clause (i) above in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive Employee shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Employee's adjusted gross income); and (C) to have otherwise allowable deductions for federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Employee's adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive Employee shall repay to the Company Employer at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive Employee or otherwise realized as a benefit by ExecutiveEmployee) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, 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 the Gross-up Payment is mademade (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 Employer shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th thirtieth day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company Employer shall pay to Executive Employee on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable Employer's Independent Auditors appointed pursuant to Executiveclause (i) above, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company Employer to ExecutiveEmployee, payable on the fifth day after demand by the Company Employer (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. Employer shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company Employer may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the CompanyEmployer's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.control

Excise Tax Gross-Up. If In addition, if it is determined by an independent accountant mutually acceptable to the Company and Executive becomes entitled that as a result of any payment in the nature of compensation made by the Company to one (or more payments for the benefit of) Executive pursuant to this Agreement or otherwise, an excise tax may be imposed on Executive pursuant to Section 4999 of the Code (or any successor provisions) , the Company shall pay Executive in cash an amount equal to X determined under the following formula: (the "Excise Tax Gross Up") X = E x P ---------------------------- 1 - [(FI x (1-SLI) + E+M] where E = the rate at which the excise tax is assessed under Section 4999 of the Code (or any successor (provisions) P = the amount with a "payment" including respect to which such excise tax is assessed, determined without regard to the vesting Excise Tax Gross Up; FI = the highest effective marginal rate of restricted stockincome tax applicable to Executive under the Code for the taxable year in question (taking into account any phase-out or loss of deductions, a stock option, personal exemptions or other nonsimilar adjustments); SLI = the sum of the highest effective marginal rates of income tax applicable to Executive under all applicable state and local laws for the taxable year in question (taking into account any phase-cash out or loss of deductions, personal exemptions and other similar adjustments); and M = the highest marginal rate of Medicare tax applicable to Executive under the Code for the taxable year in question. With respect to any payment in the nature of compensation that is made to (or for the benefit or property), whether pursuant to of) Executive under the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), otherwise and on which are or become subject to the an excise tax ("Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code")or any successor provisions) may be assessed, the Company payment determined under this sub-paragraph 9(d) shall pay be paid to Executive at the time specified below such amount (of the "GrossChange in Control but prior to the consummation of the transaction with any successor. It is the intention of the parties that the Company provide Executive with a full tax gross-up Payment") as may be necessary to place Executive in under the same provisions of this Section, so that on a net after-tax position as if no portion of basis, the Change of Control Payments and any amounts paid result to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for same as if the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net excise tax under Section 4999 of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments Code (or any portion thereofsuccessor provisions) had not been imposed. The Excise Tax Gross Up may be adjusted if alternative minimum tax rules are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable applicable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, howeverHOWEVER, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); providedPROVIDED, howeverHOWEVER, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If 11.1 Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined as provided below that any payment or distribution by the Company to or for the benefit of Executive becomes entitled to one (whether paid or more payments (with a "payment" including the vesting of restricted stock, a stock option, payable or other non-cash benefit distributed or property), whether distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan or agreement with the Company or any affiliated company additional payments required under this Paragraph 11) (collectively, a "Change of Control PaymentsPayment"), which are or become ) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended (the "CodeExcise Tax"), the Company then Executive shall pay be entitled to Executive at the time specified below such amount receive an additional payment (the a "Gross-up Up Payment") as may be necessary in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includesuch taxes), including, without limitation, reimbursement for any income taxes (and any interest and penalties imposed with respect thereto) and interest that may accrue in respect of such Excise Tax. For purposes of determining Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-up Payment, Executive shall be deemed: (A) Up Payment equal to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined imposed upon the Payments. 11.2 All determinations required to be less than the amount taken into account hereunder at the time the made under this Paragraph 11, including whether and when a Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest required and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment or portion thereof canand the assumptions to be used in arriving at such determination, shall be made by the tax department of an independent public accounting firm (the "Accounting Firm") which shall be engaged by the Company prior to the time of the first Payment to Executive. The Accounting Firm selected shall not be finally serving as accountant or auditor for any individual, entity or group effecting a Change in Control. The Accounting Firm shall prepare and provide detailed supporting calculations both to the Company and Executive within 15 business days of the later of (i) the Accounting Firm's engagement to make the required calculations or (ii) the date the Accounting Firm obtains all information needed to make the required calculation. Any determination by the Accounting Firm shall be binding upon the Company and Executive. All fees and expenses of the Accounting Firm shall be borne solely by the Company. 11.3 Any Gross-Up Payment, as determined on pursuant to this Paragraph 11, shall be paid by the Company to Executive within five (5) days of the receipt of the Accounting Firm's determination if the Payment is then required to satisfy an assessment or before such dayother current demand for payment made of the Executive by federal or state taxing authorities. Gross-Up Payments due at a later date shall be paid to the Executive no later than fourteen days prior to the date that the Executive's federal or state payment is due. If required by law, the Company shall pay treat all or any portion of the Gross-Up Payment as being subject to Executive on such day an estimate, as income tax withholding for federal or state tax purposes. Amounts determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, be subject to federal or state tax withholding will not be paid directly to Executive but shall be timely paid to the respective taxing authority. 11.4 As a result of the minimum amount uncertainty in the application of such payments. The Company shall pay to Executive Section 4999 of the remainder of such payments (together with interest Code at the rate provided in Section 1274(b)(2)(B) time of the Code) as soon as initial determination by the amount thereof can Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be determinedmade hereunder. In the event that Executive hereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the estimated payments exceeds the amount subsequently determined to have been due, Underpayment that has occurred and any such excess Underpayment shall constitute a loan be promptly paid by the Company to or for the benefit of Executive. Conversely, if it is later determined that the actual required Gross-Up Payment was less than the amount paid to the Executive, payable on the fifth day after demand by Executive shall refund the excess portion to the Company (together with interest at but only to the rate provided in Section 1274(b)(2)(B) extent that the Executive has not yet paid the excess amount to the taxing authorities or is able to obtain a refund from the respective taxing authorities of the Code)amounts previously paid. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, pursue at its sole option, own expense the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect refund on behalf of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderExecutive.

Excise Tax Gross-Up. If Executive becomes entitled In the event of a Change in Control, Compaq, at its sole expense, shall cause its independent auditors promptly to one review all payments, distributions and benefits that have been made to or more payments (with a "payment" including the vesting of restricted stockprovided to, a stock optionand are to be made to or provided to, or other non-cash benefit or property)you under this Agreement, whether pursuant to the terms of this Agreement or and any other agreement and plan or agreement with benefiting you, to determine the Company or any affiliated company (collectively, "Change applicability of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended (the "Code"). If Compaq's independent auditors determine that any such payments, distributions or benefits are subject to excise taxes as provided under Section 4999 of the Company Code (the "Excise Tax"), then such payment, distributions, or benefits (the "Original Payment(s)") shall pay to Executive at the time specified below such be increased by an amount (the "Gross-up PaymentAmount") as may be necessary to place Executive in such that, after the same after-tax position as if no portion of Company withholds all taxes due, including any excise and employment taxes imposed on the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment Amount, you will retain a net amount equal to the Original Payment(s) less income and employment taxes, if any, imposed on the Original Payment(s). To facilitate the calculation of the applicable excise tax, you agree to provide Compaq's auditors with copies of your Forms W-2 for the tax years they deem necessary for their use in determining the application of Section 4999 and calculating any amounts payable under this provision. Compaq's auditors will perform the calculations in conformance with the foregoing provisions and provide you with a copy of their calculation. The intent of the parties is that Compaq shall includebe solely responsible for, and shall pay, any Excise Tax on the Original Payment(s) and Gross-up Amount and any income and employment taxes (including, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the interest) imposed on any Gross-up PaymentAmount. If no determination by Compaq's auditors is made prior to the time you are required to file a tax return reflecting any portion of the Original Payment(s), Executive shall you will be deemed: (A) entitled to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the receive a Gross-up Payment is to be made; and (BAmount calculated on the basis of the Original Payment(s) to pay any applicable state and local income taxes at you report in such tax return, within 30 days of the highest marginal rate filing of taxation such tax return. You agree that, for the calendar year purposes of the foregoing sentence, you are not required to file a tax return until you have obtained the maximum number and length of filing extensions available. If any tax authority finally determines that a greater Excise Tax should be imposed upon the Original Payment(s) than is determined by Compaq's independent auditors or reflected in which your tax returns, you shall be entitled to receive the full Gross-up Payment is Amount calculated on the basis of the additional amount of Excise Tax determined to be made, net of the maximum reduction in federal income taxes which could be obtained payable by such tax authority (including related penalties and interest) from deduction Compaq within 30 days of such state and local taxes if paid in determination as long as you have taken all reasonable actions to minimize any such yearamounts. If any tax authority finally determines the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time in calculating the Gross-up Payment is madeAmount, Executive you shall repay to the Company at the time Compaq, within 30 days of your receipt of a refund resulting from that the amount of such reduction in Excise Tax is finally determined (butdetermination, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if Amount attributable to such reduction (plus the refunded portion of Gross-up Amount attributable to the Excise Tax had been used in initially calculating and federal, state and local income and employment taxes imposed on the Gross-up PaymentAmount being repaid, plus interest on the amount of less any additional income tax resulting from 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Coderefund). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "“payment" ” including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "“Change of in Control Payments"”), which are or become subject to the tax ("“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”), the Company shall pay to the Executive at the time specified below such amount (the "“Gross-up Payment"”) as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of in Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c) Section 8 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentpayment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1274 (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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled (i) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment, distribution or more payments benefit provided (with a "including, without limitation, the acceleration of any payment" including , distribution or benefit and the vesting acceleration of restricted stock, a exercisability of any stock option, ) to Executive or other non-cash for his benefit (whether paid or property), whether payable or distributed or distributable) pursuant to the terms of this Agreement or any other plan otherwise (a “Payment”) would be subject, in whole or agreement with the Company or any affiliated company (collectivelyin part, "Change of Control Payments"), which are or become subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"“Excise Tax”), then the Executive shall be entitled to receive from the Company shall pay to Executive at the time specified below such amount an additional payment (the "“Gross-up Up Payment"”) as may be necessary to place Executive in an amount such that the same after-tax position as if no portion net amount of the Change Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of Control Payments all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any amounts paid interest or penalties imposed with respect to Executive pursuant to such taxes) on the Gross-Up Payment provided for in this paragraph 5(cSection 5(f) had been subject and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Excise Tax. The Payment. (ii) All determinations required to be made under this Section 5(f), including whether and when the Gross-up Up Payment shall include, without limitation, reimbursement for any penalties is required and interest that may accrue in respect the amount of such Excise TaxGross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Executive’s employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Agreement, the “Accountants” shall mean Ernst & Young LLP or another accounting firm mutually acceptable to the Company and Executive. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: (A) deemed to pay federal Federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state and or local taxes if paid in such yearyear (determined with regard to limitations on deductions based upon the amount of Executive’s adjusted gross income). If To the Excise Tax extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is subsequently entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants’ determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f)(an “Overpayment” or “Underpayment,” respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder at initially determined by the time the Gross-up Payment is madeAccountants, Executive shall promptly repay the Overpayment to the Company at Company; provided, however, that in the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the event any portion of the Gross-up Up Payment that would not have to be repaid to the Company has been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentto any Federal, plus interest on the amount state or local tax authority, repayment thereof shall not be required until actual refund or credit of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeportion has been made to Executive. In the event that the Company exhausts its remedies pursuant to Section 5(f) (iii) and Executive is required to make a payment of any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is madeTax, the Company shall make an additional promptly pay the Underpayment to or for Executive’s benefit. (iii) 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 a Gross-up Payment Up Payment. Such notification shall be given as soon as practicable after Executive is informed in respect writing of such excess claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which Executive gives such notice to the Company (plus or such shorter period ending on the date that any payment of taxes, interest and and/or penalties payable with respect to such excess) at claim is due). If the time that Company notifies Executive in writing prior to the amount expiration of such excess is finally determined. The Gross-up Payment provided for above shall be paid on period that it desires to contest such claim, Executive shall: (a) give the 30th day Company any information reasonably requested by the Company relating to such claim; (or b) take such earlier date action in connection with contesting such claim as the Excise Tax becomes due and payable 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 taxing authoritiesCompany; (c) after it has been determined that cooperate with the Change of Control Payments Company in good faith in order to effectively contest such claim; and (or d) permit the Company to participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claims; provided, however, that if the amount Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Executive for and hold Executive harmless from, on an after-tax basis, any Excise Tax, income tax or employment tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined on or before such dayrepresentation and payment of all related costs and expenses. Without limiting the foregoing provisions of this Section 5(f), the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including 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 interest 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 penalties thereon); providedmore appellate courts, however, that as the Company shall determine. The Company's ’s control over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Notwithstanding any other provision of this Section 5(f), (i) all taxes and related expenses described in this Section 5(f) shall be paid or reimbursed no later than the end of the year following the year in which the applicable taxes are remitted or, in the case of expenses with respect to which there is no remittance of taxes, no later than the end of the year following the year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation, and (ii) if the Executive is a “specified employee” within the meaning of Section 409A of the Code at the time of his termination of employment, no tax or related expense shall cooperate with be paid or reimbursed hereunder during the Company in any proceedings relating to six-month period beginning on the determination and assessment date of any Excise Tax and shall not take any position or action that would materially increase the amount such termination of any Gross-up Payment hereunderemployment.

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" for this purpose including the accelerated vesting of restricted stock, a stock optionoptions or other equity awards, or other non-cash benefit benefits or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of in Control Payments"), which are or become subject to the tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended mended (the "Code"), the Company shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-after- tax position as if no portion of the Change of in Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c) Section 8 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentpayment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B1274 (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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.such

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant Notwithstanding any ------------------- provision in this Agreement to the terms contrary, if any payment to or for the benefit of the Employee under this Agreement Agreement, either alone or any together with other plan payments to or agreement with for the Company or any affiliated company (collectivelybenefit of the Employee, "Change of Control Payments"), which are or become is subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code", such payments referred to hereinafter as "Change of Control Payments" and such tax referred to hereinafter as the "Excise Tax"), the Company shall pay to Executive at the time specified below Employee such additional amount (the "Gross-up Payment") as may be necessary to place Executive the Employee in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive the Employee pursuant to this paragraph 5(c) Section 6.7 had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive the Employee shall be deemed: deemed (Ai) to pay federal income taxes tax at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; made and (Bii) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the The amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been shall be determined by the Compensation Committee of the Board of Directors acting reasonably, promptly and in good faith and shall be paid if such Excise Tax had been used in initially calculating cash within ten (10) business days after the Gross-up Payment, plus interest on the amount determination of such repayment at amount, but in any event not later than the rate provided business day prior to the date on which the Employee would otherwise pay his federal income taxes for the applicable year in Section 1274(b)(2)(B) of the Code. In the event that which the Excise Tax is determined imposed." E. Section 7.1 of the Employment Agreement is hereby amended by deleting the last sentence thereof and inserting the following sentence in its place: "Subject to exceed Section 7.2 hereof, during the amount taken into account hereunder at Consulting Term, in consideration of the time performance by the Gross-up Payment is made, the Company shall make an additional Gross-up Payment Employee of services set forth in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such daythis Section 7.1, the Company shall pay to Executive on such day an estimatethe Employee, as determined by counsel or auditors selected by and the Company and reasonably acceptable to ExecutiveEmployee shall accept, of a consulting fee (the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments "Fee") (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth 15th day after demand of each month for the month in which the payment occurs) in an amount per month equal to the quotient obtained by dividing (x) the Company sum of (together with interest at i) the rate provided in Employee's annual salary under Section 1274(b)(2)(B) 3.1 for the fiscal year immediately preceding the commencement of the CodeConsulting Term (the "Reference Year") and (ii) the bonus paid to the Employee for the Reference Year under Section 3.2 by (y) twelve (12)." F. The references in Sections 7.2 and 7.4 hereof to "Section 3.4 of the 1997 Agreement" are hereby deleted and replaced with references to "Sections 3.3 and 3.4 hereof." G. The Employment Agreement, as hereby amended, continues in full force and effect and is hereby ratified and confirmed in all respects. H. This Amendment No. The Company shall have the right to control all proceedings with the Internal Revenue Service that 1 may arise be executed in connection with the determination and assessment counterparts, each of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings which shall be limited to issues with respect to deemed an original, but all of which a Gross-up Payment would be payable hereunder, taken together shall constitute one and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authoritysame instrument. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.* * *

Excise Tax Gross-Up. If Executive becomes entitled (a) Notwithstanding anything in this Agreement to one the contrary and except as set forth below, in the event it shall be determined that any payment or more payments distribution by Terex or its affiliates to or for the benefit of DeFeo (with a "payment" including the vesting of restricted stock, a stock option, whether paid or other non-cash benefit xxxxxle or property), whether distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan or agreement with the Company or any affiliated company additional payments required under this Section 10) (collectively, a "Change of Control PaymentsPayment"), which are or become ) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986or any interest or penalties are incurred by DeFeo with respect to sxxx xxcise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as amended (the "CodeExcise Tax"), then DeFeo shall be entxxxxx to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by DeFeo of all taxes (ixxxxxing 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 Company Gross-Up Payment, DeFeo retains an amouxx xx the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing, if it shall pay be determined that DeFeo is entitled to Executive at a Xxxxx-Up Payment, but that the time specified below such Payments do not exceed 105% of the greatest amount (the "Reduced Amount") that could be paid to DeFeo such that the rexxxxx of Payments would not give rise to any Excise Tax, then no Gross-up Payment") as may Up Payment shall be necessary made to place Executive in DeFeo and the same after-tax position as if no portion of Payments, xx the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject aggregate, shall be reduced to the Excise Tax. The Reduced Amount. (b) Subject to the provisions of Section 10(c) below, all determinations required to be made under this Section 10, including whether and when a Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Up Payment is to be made; required and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction Gross-Up Payment and the assumptions to be utilized in Excise Tax is finally arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other nationally recognized certified public accounting firm as may be designated by DeFeo (the "Accounting Xxxx") which shall provide detailed supporting calculations both to Terex and DeFeo simultaneously xxxx any event giving rise to a Gross-Up Payment. All fees and expenses of the Accounting Firm shall be borne solely by Terex. Any Gross-Up Payment, as determined (butpursuant to this Section 10, if previously shall be paid by Terex to DeFeo simultaneously xxth any event giving rise to a Gross-Up Payment. Absent manifest error, any determination by the taxing authorities, not prior to Accounting Firm shall be binding upon Terex and DeFeo. As a result of txx xxcertainty in the application of Section 4999 of the Code at the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the initial determination by the Accounting Firm hereunder, it is possible that Gross-up Payment that would Up Payments which will not have been paid if such Excise Tax had made by Terex should have been used in initially calculating made ("Underpayment"), consistent with the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codecalculations required to be made hereunder. In the event that Terex exhausts its remedies pursuant to Section 10(c) and DeFeo thereafter is xequired to make a payment of any Excise Tax, the Excise Tax is determined to exceed Accounting Firm shall determine the amount taken into account hereunder at of the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of Underpayment that has occurred and any such excess Underpayment (plus including any interest and penalties payable thereon) shall be promptly paid by Terex to or for the benefit of DeFeo. (c) DxXxx shall notify Texxx xn writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Terex of the Gross-Up Payment or the Underpayment. Such notification shall be given as soon as practicable but no later than 10 business days after DeFeo is informed xx xxiting of such claim and shall apprise Terex of the nature of such claim and the date on which such claim is requested to be paid. DeFeo shall not pax xxxh claim prior to the expiration of the 30-day period following the date on which he gives such notice to Terex (or such shorter period ending on the date that any payment of taxes with respect to such excess) at the time that the amount claim is due). If Terex notifies DeFeo in writing prior xx xxe expiration of such excess is finally determined. The Gross-up Payment provided for above period that it desires to contest such claim, DeFeo shall: (i) provide Terex any information reasonably requested by Terex relating to such claim, (ii) take such action in connection with contesting such claim as Terex shall be paid on the 30th day 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 Terex, (or iii) cooperate with Terex in good faith in order effectively to contest such earlier date as the Excise Tax becomes due and payable claim, and (iv) permit Terex to the taxing authorities) after it has been determined that the Change of Control Payments (or participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claim; provided, however, that if the amount Terex shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold DeFeo harmlesx, xn an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company representation and reasonably acceptable to Executive, payment of the minimum amount of such paymentscosts and expenses. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable Without limitation on the fifth day after demand by the Company (together with interest at the rate provided in foregoing provisions of this Section 1274(b)(2)(B) of the Code10(c). The Company , Terex shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including claim and may, at its sole option, either direct DeFeo to pay the tax cxxxxxd and sue for a refund or contest the claim in any interest permissible manner, and DeFeo agrees to xrosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or penalties thereon)more appellate courts, as Terex shall determine; provided, however, that if Terex directs DeFeo to pay such claix xxx sue for a refund, Terxx shall pay the Companyamount of such payment to DeFeo, along with an additional Gross-Up Payment, and shall indemnify and hold DeFeo harmlesx, xn an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of DeFeo with respect to wxxxx such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, Terex's control over any such proceedings of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and Executive DeFeo shall be entitled to settle xx xettle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Executive . (d) If, after the receipt by DeFeo of an amount advxxxxx by Terex pursuant to Section 10(c), DeFeo receives any refuxx xxth respect to such claim, DeFeo shall cooperate (subject to Xxxxx's complying with the Company in any proceedings relating requirements of Section 10(c)) promptly pay to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase Terex the amount of such refund (together with any Gross-up Payment hereunderinterest paid or credited thereon after taxes applicable thereto).

Excise Tax Gross-Up. If the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property, including those benefits described in paragraph 4(i) below), whether pursuant to the terms of this Agreement or any other plan or agreement with the Company or any affiliated company (collectively, "Change of Control Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive at the time specified below such amount (the "Gross-up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to the Executive pursuant to this paragraph 5(c4(h) had been subject to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining the amount of the Gross-up Payment, the Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by b the Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is if finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; : provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to the Executive, of the minimum amount of such payments. The Company shall pay to the Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently subsesquently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder. (i) If Executive remains employed through the term of this Agreement, he and his spouse shall be entitled to continue, until their deaths, to participate (at no cost to the Executive and his spouse) in the following Company employee benefit plans and arrangements in effect on the date hereof (or other benefit plans or arrangements providing substantially similar benefits) in which the Executive now participates: executive medical, dental, vision and mental health insurance; life insurance; accidental death and dismemberment insurance; travel insurance; group excess personal liability; and the Matching Contributions. The Company shall not make any changes in such plans or arrangements that would adversely affect the Executive's rights or benefits thereunder, unless such change occurs pursuant to a program applicable to all senior executives of the Company and does not result in a proportionately greater reduction in the rights of, or benefits to, the Executive as compared with any other senior executive of the Company. For purposes of this paragraph, in the event of a Change of Control, as defined in paragraph 7(f) of this Agreement, the "Company" shall include any other entity that is a successor to the Company, whether by merger, consolidation, liquidation, as a result of the sale, exchange or transfer of all or substantially all of the Company's assets, or otherwise, and the provisions of this paragraph shall continue to be binding on and shall be performed by such successor for the benefit of the Executive and his spouse and their heirs and successors. Further, in the event of any such change of control the "senior executives of the Company" referred to in this paragraph shall mean the senior executives who are members of its executive committee, or equivalent, or if there is no such committee who hold the most senior rank in the successor entity. Executive and his spouse will also be entitled to these lifetime benefits should his employment terminate if: (i) he becomes disabled, as provided in paragraph 7(b), (ii) he is terminated Without Cause, pursuant to paragraph 7(d); or (iii) he terminates his employment for Good Reason, as set forth in paragraph 7(e). (j) Until his death, the Executive shall be reimbursed by the Company for any estate planning fees or expenses actually incurred by the Executive, up to a maximum annual reimbursement of $10,000; provided, however, that such annual limit shall be increased from time to time consistent with increases in similar benefits provided to the then current Chief Executive Officer of the Company.

Excise Tax Gross-Up. If Executive becomes entitled (i) Anything in this Agreement to one the contrary notwithstanding, if it shall be determined that any payment, distribution or more payments benefit provided (with a "including, without limitation, the acceleration of any payment" including , distribution or benefit and the vesting acceleration of restricted stock, a exercisability of any stock option, ) to Executive or other non-cash for his benefit (whether paid or property), whether payable or distributed or distributable) pursuant to the terms of this Agreement or any other plan otherwise (a "Payment") would be subject, in whole or agreement with the Company or any affiliated company (collectivelyin part, "Change of Control Payments"), which are or become subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "CodeExcise Tax"), then the Executive shall be entitled to receive from the Company shall pay to Executive at the time specified below such amount an additional payment (the "Gross-up Up Payment") as may be necessary to place Executive in an amount such that the same after-tax position as if no portion net amount of the Change Payment and the Gross-Up Payment retained by Executive after the calculation and deduction of Control Payments all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the Payment and all federal, state and local income tax, employment tax and Excise Tax (including any amounts paid interest or penalties imposed with respect to Executive pursuant to such taxes) on the Gross-Up Payment provided for in this paragraph 5(cSection 5(f) had been subject and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Excise Tax. The Payment. (ii) All determinations required to be made under this Section 5(f), including whether and when the Gross-up Up Payment shall include, without limitation, reimbursement for any penalties is required and interest that may accrue in respect the amount of such Excise TaxGross-Up Payment, and the assumptions to be used in arriving at such determinations shall be made by the Accountants (as defined below) which shall provide Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within ten (10) days after termination of Executive's employment or such other event which results in a Payment which could necessitate a Gross-Up Payment. For purposes of this Section 5(f), the "Accountants" shall mean BDO Xxxxxxx, LLP. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: (A) deemed to pay federal Federal income taxes at the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; made and (B) to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from the deduction of such state and or local taxes if paid in such yearyear (determined with regard to limitations on deductions based upon the amount of Executive's adjusted gross income). If To the Excise Tax extent practicable, any Gross-Up Payment with respect to any Payment shall be paid by the Company at the time Executive is subsequently entitled to receive the Payment and in no event shall any Gross-Up Payment be paid later than 10 days after the receipt by Executive of the Accountants' determination. Any determination by the Accountants shall be binding upon the Company and Executive, including for purposes of withholding on amounts payable under this Agreement. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount that is greater or less than the Company should have paid pursuant to this Section 5(f) (an "Overpayment" or "Underpayment," respectively). In the event that the Gross-Up Payment is determined by the Accountants or pursuant to any proceeding or negotiations with the Internal Revenue Service to be less than the amount taken into account hereunder at initially determined by the time the Gross-up Payment is madeAccountants, Executive shall promptly repay the Overpayment to the Company at Company; PROVIDED, HOWEVER, that in the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the event any portion of the Gross-up Up Payment that would not have to be repaid to the Company has been paid if such Excise Tax had been used in initially calculating the Gross-up Paymentto any Federal, plus interest on the amount state or local tax authority, repayment thereof shall not be required until actual refund or credit of such repayment at the rate provided in Section 1274(b)(2)(B) of the Codeportion has been made to Executive. In the event that the Company exhausts its remedies pursuant to Section 5(f)(iii) and Executive is required to make a payment of any Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is madeTax, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above Underpayment shall be promptly paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to or for Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunderbenefit.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "“payment" including ” including, but not limited to, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar tax that may hereafter be imposed) (the "Code"“Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitationbut not be limited to, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-Up Payment provided for by this subparagraph (l), but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed to Executive for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (1) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (2) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (3) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by of Executive) the portion of the Gross-up Up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Up Payment, 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 the Gross-up Up Payment is mademade (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 Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-Up Payment is made, the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Up Payment hereunder. Notwithstanding any provision in the Agreement to the contrary, the Gross-Up Payment shall be paid no later than the end of the year in which the Company remits the related taxes.

Excise Tax Gross-Up. If (i) In the event that it shall be determined at any time (as hereafter provided) that any payment by the Company to the Executive becomes entitled to one or more payments (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan or agreement with otherwise (the Company or any affiliated company (collectively, "Change of Control “Subject Payments"), which are or become ”) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code"”) (or any successor provision thereto) by reason of being considered a “parachute payment,” within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law (such tax or taxes being hereafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Executive at receive an additional payment or payments (collectively, the time specified below such amount (the "“Gross-up Up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax”). The Gross-up Up Payment shall includebe in an amount such that, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax. For purposes of determining after reducing the amount of the Gross-up PaymentUp Payment by all applicable U.S. federal, Executive shall be deemed: (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in (computed at the maximum marginal rates and including any interest or penalties imposed with respect to such year. If taxes), including any Excise Tax imposed on the Gross-Up Payment, there remains an amount of Gross-Up Payment equal to the Excise Tax is subsequently determined imposed on the Subject Payments. (ii) Subject to the provisions of Section 4(k)(v), all determinations required to be less than made under this Section 4(k), including whether an Excise Tax is payable by the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that and the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time and the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the any associated Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Up Payment, 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on made by a nationally recognized accounting firm (the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities“Accounting Firm”) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to the Executive. The Accounting Firm shall submit its determination and detailed supporting calculations to both the Company and the Executive within 30 calendar days of the request for such determination by the Company or the Executive, but in no event later than 10 days before the date when such tax is required by the applicable taxing authority to be paid, and at such other time or times as may be requested by the Company. All fees and expenses of the minimum Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. If the Executive after consultation with his tax counsel determines that any legal position adopted by the Accounting Firm with respect to the calculation is subject to uncertainty, at the written request of the Executive, the Accounting Firm will deliver a written opinion to the Executive that there is “substantial authority”, within the meaning of the Treas. Reg. Section 1.6662-4(d), for the positions adopted. If the Accounting Firm’s determination of the amount of the Excise Tax payable by the Executive is determined to be erroneous by the applicable taxing authority or court after any contest of such paymentsdetermination as described in Section 4(k)(v) and, as a result of such erroneous determination the Executive fails to report the full amount to the Excise Tax determined to be due on his applicable federal income tax return, then the Company shall indemnify, without duplication for any amounts required to be paid under Section 4(k)(v), the Executive on an after tax basis for the amount of any tax deficiency and negligence penalty or other penalty imposed on the Executive by the Internal Revenue Service or other taxing authority in connection therewith. Any such indemnity payment shall be made by the Company to the Executive no later than the earlier of 10 days after the resolution of any contest of such determination as described in Section 4(k)(v) or 2 days before the date when such tax is required by the applicable taxing authority or court to be paid. (iii) The Company and the Executive shall 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 the case may be, reasonably requested by the Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 4(k)(ii). (iv) The federal, state and local income or other tax returns filed by the Executive shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Company Executive shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) make proper payment of the Code) as soon as amount of any Excise Payment. If prior to the amount thereof can be determined. In filing of the event Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the estimated payments exceeds Gross-Up Payment should be reduced, the Executive shall within 10 business days pay to the Company the amount subsequently determined to have been dueof such reduction. (v) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, such excess shall constitute a loan if successful, would require the payment by the Company of a Gross-Up Payment or increasing the amount of any Gross-Up Payment previously made. Such notification shall be given as promptly as practicable but no later than 10 business days after the Executive actually receives notice of such claim and the Executive shall further inform the Company of the nature of such claim and the date on which such claim is requested to Executivebe paid. The Executive shall not pay such claim prior to the earlier of (x) the expiration of the 30-calendar-day period following the date on which he gives such notice to the Company and (y) the date that any payment of amount with respect to such claim is due. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim in a legally permissible manner, payable on the fifth day after demand Executive shall: (A) provide the Company with any written records or documents in his possession relating to such claim reasonably requested by the Company; (B) 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 competent in respect of the subject matter and reasonably selected by the Company and reasonably acceptable to the Executive; (together C) cooperate with the Company in good faith in order effectively to contest such claim; and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses incurred in connection with such contest and shall indemnify and hold harmless the Executive, on an after-tax basis, for and against any Excise Tax or income tax (including interest at the rate provided in Section 1274(b)(2)(B) and penalties with respect thereto), imposed as a result of the Coderesolution of such claim and such representation and payment of all costs and expenses (including with respect to any imputed income amounts). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment contest of any Excise Tax claim contemplated by this Section 4(k)(v) and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax claim (including provided, however, that the Executive may participate therein at his own cost and expense) and may, at its option, either direct the Executive to pay the tax claimed and sxx for a refund or contest the claim in any interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay the tax claimed and sxx 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 or other tax, including interest or penalties with respect thereto, imposed with respect to the resolution of such claim and such advance (including with respect to any imputed income amounts); and provided further, however, that 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 such contested amount. Furthermore, the Company's ’s control over of any such proceedings contested claim shall be limited to issues with respect to which a Gross-up Up Payment would be payable hereunder, hereunder and the Executive shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. . (vi) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 4(k)(v), the Executive receives any refund with respect to such claim, the Executive shall cooperate (subject to the Company’s complying with the Company in any proceedings relating requirements of Section 4(k)(v)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after any taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 4(k)(v), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and assessment the Company does not notify the Executive in writing of any Excise Tax its intent to contest such denial or refund prior to the expiration of 30 calendar days after such determination, then such advance shall be forgiven and shall not take any position or action that would materially increase be required to be repaid and the amount of any such advance shall be credited against, to the extent thereof, the amount of Gross-Up Payment or indemnity required to be paid by the Company to the Executive pursuant to this Section 4(k). (vii) Notwithstanding any other provision of this Section 4, any gross-up Payment hereunderpayment due to the Executive hereunder shall be paid in accordance with this Section 4(k) , but in no event may such payments be made later than December 31 of the year following the year (A) any excise tax is paid to the Internal Revenue Service regarding this Section 4(k) or (B) any tax audit or litigation brought by the Internal Revenue Service or other relevant taxing authority related to this Section 4(k) is completed or resolved.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "“payment" including ” including, without limitation, payments in connection with a Change in Control or the vesting of restricted stocka SAR, a stock option, option or other equity award or other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, "Change of Control the “Total Payments"”), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code or a successor provision of 1986, as amended the Code (the "Code"“Excise Tax”), the Company shall pay to Executive at the time specified below such an additional amount (the "“Gross-up Payment"”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions by the Executive disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. 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) The Total Payments shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Total Payments (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(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearyear (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income. If In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) (the “Repayment Date”) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been used applied in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeCode from the Repayment Date until paid. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is mademade (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment), the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid to the Executive (or to the IRS on behalf of the Executive) on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Total Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to ExecutiveIndependent Advisors, of the minimum amount of such payments. The Company payments and shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) ), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment subject to the Company compliance with the provisions of this Section. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's ’s control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder. Prior to the third anniversary of the date of this Agreement, the Board (and/or the Compensation Committee) and Executive agree to discuss a provision to replace this Section 7, on terms and conditions mutually satisfactory to the Board and Executive, which takes into account the then current public market conditions. In the event that the Board (and/or the Compensation Committee) and Executive mutually agree to a replacement of this Section 7, the parties shall set forth the terms and conditions of such modification in a written amendment to this Agreement.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (with a "payment" including including, without limitation, the vesting of restricted stock, a stock option, an option or other non-cash benefit or property), whether pursuant to the terms of this Termination Agreement or any other plan plan, arrangement, or agreement with the Company or any affiliated company (collectively, the "Change of Control Total Payments"), which are or become subject to the tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), the Company shall pay to Executive at the time specified below such an additional amount (the "Gross-up Payment") as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment (which shall 15 16 include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Total Payments and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section 10, but before reduction for any federal, state, or local income or employment tax on the Total Payments, shall be equal to the sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: (a) The Total Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants or auditors of nationally recognized standing ("Independent Advisors") selected by the Company and reasonably acceptable to Executive, the Total Payments (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 before a Change of Control within the meaning of Section 280G(b)(4)(B) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments or (ii) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed: deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently year (determined without regard to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that limitations on deductions based upon the amount of such reduction in Excise Tax is finally determined Executive's adjusted gross income); and (butC) to have otherwise allowable deductions for federal, if previously paid state, and local income tax purposes at least equal to those disallowed because of the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion inclusion of the Gross-up Payment that would not have been paid if such Excise Tax had been used in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the CodeExecutive's adjusted gross income. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.Excise

Excise Tax Gross-Up. If Executive becomes entitled any payment or benefit received or to one be received by Employee in connection with any change in control of the Company or more payments termination of Employee’s employment other than by the Company for Cause or by Employee for Good Reason (with a "payment" including the vesting of restricted stock, a stock option, or other non-cash benefit or property), whether payable pursuant to the terms of this Agreement Agreement, a stock option plan or any other plan or agreement arrangement with the Company or any affiliated company Company) (collectively, "Change of Control the “Total Payments"), which are or become ”) will be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended (the "Code")amended, the Company shall will pay to Executive at the time specified below such Employee, within thirty days of any payments giving rise to excise tax, an additional amount (the "Gross“gross-up Payment"payment”) as may be necessary to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject equal to the Excise Tax. The Gross-up Payment shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Taxexcise tax on the Total Payments. For purposes of determining whether any of the Total Payments would not be deductible by the Company and would be subject to the excise tax, and the amount of such excise tax, (1) Total Payments will be treated as “parachute payments” within the Gross-up Paymentmeaning of Section 280G(b)(2) of the Code, Executive shall and all parachute payments in excess of the base amount within the meaning of Section 280G(b)(3) will be deemed: treated as subject to the excise tax unless, in the opinion of tax counsel selected by the Company’s independent auditors prior to the change in control and acceptable to the Employee, such Total Payments (Ain whole or in part) are not parachute payments, or such parachute payments in excess of the base amount (in whole or in part) are otherwise not subject to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; excise tax, and (B2) to pay the value of any applicable state non-cash benefits or any deferred payment will be determined by the Company’s independent auditors in accordance with Sections 280G(d)(3) and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net (4) of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such yearCode. If the Excise Tax excise tax is subsequently determined to be less than the amount originally taken into account hereunder at hereunder, the time the Gross-up Payment is made, Executive shall Employee will repay to the Company at the time that the amount of Company, when such reduction in Excise Tax excise tax is finally determined (butdetermined, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Grossgross-up Payment that would not have been paid if payment attributable to such Excise Tax had been used in initially calculating reduction. If the Gross-up Payment, 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 excise tax is determined to exceed the amount originally taken into account hereunder (including by reason of any payment, the existence or amount of which cannot be determined at the time of the Grossgross-up Payment is madepayment), the Company shall will make an additional Grossgross-up Payment payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of when such excess is if finally determined. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Change of Control Payments (or any portion thereof) are subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings 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 any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.

Excise Tax Gross-Up. (a) If Executive becomes entitled it shall be determined that any amount paid, distributed or treated as paid or distributed by the Company to one or more payments for your benefit (with a "payment" including the vesting of restricted stock, a stock option, whether paid or other non-cash benefit payable or property), whether distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan or agreement with the Company or any affiliated company additional payments required under this Section 8) (collectively, "Change of Control Payments"), which are or become a “Payment”) would be subject to the excise tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986Code, or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, being hereinafter collectively referred to as amended (the "Code"“Excise Tax”), the Company then you shall pay be entitled to Executive at the time specified below such amount receive an additional payment (the "a “Gross-up Up Payment"”) as may be necessary in an amount such that after payment by you of all federal, state and local taxes (including any interest or penalties imposed with respect to place Executive in the same after-tax position as if no portion of the Change of Control Payments and any amounts paid to Executive pursuant to this paragraph 5(c) had been subject to the Excise Tax. The Gross-up Payment shall includesuch taxes), including, without limitation, reimbursement for any income taxes (and any interest and penalties imposed with respect thereto) and interest that may accrue in respect of such Excise Tax. For purposes of determining Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-up Payment, Executive shall be deemed: (A) Up Payment equal to pay federal income taxes at the highest marginal rate of federal income taxation for the year in which the Gross-up Payment is to be made; and (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. If the Excise Tax is subsequently determined imposed upon the Payments. The determinations required to be less than the amount taken into account hereunder at the time the made under this Section 8, including whether and when a Gross-up Up Payment is made, Executive shall repay to the Company at the time that required and the amount of such reduction Gross-Up Payment and the assumptions to be utilized in Excise Tax arriving at such determination, shall be made by a nationally recognized accounting firm (the “Accounting Firm”) in consultation with reasonable counsel of your choosing, which shall provide detailed supporting calculations both to the Company and to you within 15 business days of the receipt of notice from you that there has been or may be a Payment, or such earlier time as is finally requested by you or the Company. The Accounting Firm shall be appointed jointly by you and the Company. All fees and expenses of the Accounting Firm and your counsel shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8, shall be paid by the Company to you within five days of the receipt of the Accounting Firm’s determination. Any reasonable determination by the Accounting Firm shall be binding upon you and the Company. (butb) Without limiting the scope of Section 8(a) hereof, you shall notify the Company in writing of any written claim to you by the Internal Revenue Service that, if previously paid to successful, would require the taxing authorities, not prior to payment by the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion Company of the Gross-up Payment that would Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after you are 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. You shall not have been paid if pay such Excise Tax had been used in initially calculating claim prior to the Grossexpiration of the 30-up Payment, plus interest day period following the date on which you give such notice to the Company (or such shorter period ending on the amount date that any payment 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 the Gross-up Payment is made, the Company shall make an additional Gross-up Payment in respect of such excess (plus any interest and penalties payable taxes with respect to such excess) at claim is required by the time that Internal Revenue Service). If the amount Company notifies you in writing prior to the expiration of such excess is finally determined. The Gross-up Payment provided for above shall be paid on period that it desires to contest such claim, you shall: (i) give the 30th day Company any information reasonably requested by the Company relating to such claim, (or ii) take such earlier date action in connection with contesting such claim as the Excise Tax becomes due Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim, and payable (iv) permit the Company to the taxing authorities) after it has been determined that the Change of Control Payments (or participate in any portion thereof) are subject proceedings relating to the Excise Taxsuch claim; provided, however, that if the amount Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such Gross-up Payment or portion thereof cannot be finally determined representation and payment of costs and expenses. Without limitation on or before such daythe foregoing provisions of this Section 8(b), the Company shall pay to Executive on such day an estimate, as determined by counsel or auditors selected by the Company and reasonably acceptable to Executive, of the minimum amount of such payments. The Company shall pay to Executive the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise taken in connection with the determination and assessment of any Excise Tax such contest and, at its sole option, the Company may pursue or forego forgo any and all administrative appeals, proceedings, hearings, hearings and conferences with any the taxing authority in respect of such Excise Tax (including 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 interest 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 penalties thereon)more appellate courts, as the Company shall determine; provided, however, 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 Company's ’s control over any such proceedings of the contest shall be limited to issues with respect to which whether a Gross-up Up Payment would be payable hereunder, hereunder and Executive you shall be entitled to settle or contest contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-up Payment hereunder.