Common use of Excise Tax Gross-Up Clause in Contracts

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer shall pay to Executive an additional cash payment (hereinafter referred to as the "Gross-Up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event it is determined that there shall occur a Change in Control of the Company, if Executive becomes entitled to one or more payments (pursuant to (b) below) with a "payment" including, without limitation, the vesting of an option or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, other non-cash benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of themproperty), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement, or agreement with the Company or any additional payments required under this Section 5) affiliated company (each a "Payment" and collectively the "Total Payments") is ), which are or was become subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision amended (the "Code") (or any comparable provision of state or local income similar tax law that may hereafter be imposed) (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive at the time specified below an additional cash payment amount (hereinafter referred to as the "Gross-Up up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (includingwhich 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 taxes imposed upon Excise Tax on the Gross-Up Payment)up Payment provided for by this Section 9, Executive retains 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 up Payment equal 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 imposed upon and the amount of such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.Tax:

Excise Tax Gross-Up. (a) Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, in the event if it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the Employee's benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwisepursuant to an Employment Agreement or any other compensatory Company plan or arrangement, but determined without regard to any additional payments required under this Section 5taking into account the Gross-Up Payment, as hereinafter defined) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law amended (collectively, the "Section 4999Code"), or any interest, penalty interest or addition to tax is or was penalties are incurred by Executive Employee with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer then Employee shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by Executive Employee of all taxesFederal, interest, state and local taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes, withholding taxes and excise payroll taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), Executive Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision All determinations required to be made under this Section 11, including whether and when a Gross-Up Payment is intended required and the amount of such Gross-Up Payment and the assumptions to put Executive be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm as may be designated by Employee (the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment."Accounting Firm") which shall provide detailed supporting calculations both to the Company and Employee within fifteen (15) business days of

Excise Tax Gross-Up. (a) Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it is shall be determined (pursuant to (b) below) that the vesting of Awards, aggregate payments or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to distributions by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), affiliated companies to or for the benefit of Executive Executive, whether paid or Executive's dependents, heirs payable or beneficiaries (whether such payment, distribution, transfer, benefit distributed or other event occurs distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this Section 56 (a “Payment”), constitute “parachute payments” (as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (each a "Payment" collectively, “Section 280G”)) the aggregate present value of which equals or exceeds three times Executive’s “base amount” (as such term is defined under Section 280G) and collectively the "Payments") is or was are therefore subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and or any successor provision or any comparable provision of state or local income tax law (collectively, "“Section 4999"), ”) or any interest, penalty penalties or addition additions to tax is or was incurred by Executive with respect to such excise tax (such the total excise tax, together with any such interest, penalty penalties or addition additions to tax, are hereinafter collectively referred to as the "“Excise Tax"”)), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any Federal, state or local income and excise employment taxes and Excise Tax (and any interest and penalties imposed with respect to any such taxes) imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision is intended Notwithstanding the foregoing, Executive agrees to put Executive in reduce the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result aggregate amount of any PaymentPayments that constitute “parachute payments” to the extent necessary so that such Payments do not equal or exceed three times Executive ‘ s “base amount” (and therefore are not subject to the excise tax imposed by Section 4999); provided, however, that Executive shall not be required to make any such reduction if the reduction necessary to cause such Payments not to equal or exceed three times Executive’s “base amount” is more than $100,000.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to To the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) extent that any paymentpayment or distribution of any type to or for Executive by Employer, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor subsidiary or affiliate of any of themEmployer, and including any benefit plan of any of them), to whether paid or for the benefit of Executive payable or Executive's dependents, heirs distributed or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs distributable pursuant to the terms of this Agreement or otherwiseotherwise (including, but determined without regard to limitation, any additional payments required under this Section 5accelerated vesting of stock options or restricted stock granted by Employer) (each a "Payment" and collectively collectively, the "“Total Payments"”) is or was will be subject to the excise tax (“Excise Tax”) imposed by under Section 4999 of the Internal Revenue Code of 1986, as amendedamended (the “Code”), and (or any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"to such Section), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer shall pay to Executive, at the time Executive pays any Excise Tax with respect to any of such Total Payments (which may be at the time the Employer withholds Excise Tax from any payments or at the time he files his annual federal income tax return for a year in which Excise Tax is due or payable), an additional cash payment amount (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that which is, after payment by Executive the imposition of all income, employment, and excise taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon on such Payment or Total Payments. This provision The determination of whether any portion of the Total Payments is intended subject to put an Excise Tax and, if so, the amount and time of any Gross-Up Payment pursuant to this Section 7.3 shall be made by an independent auditor (the “Auditor”) jointly selected by Executive and Employer and paid by the Employer. If Executive and Employer cannot agree on the firm to serve as the Auditor, then each shall select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. Unless 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 Employer. 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 proceeding or claim (including attorneys’ fees and other expenses incurred by Executive in connection therewith) shall be paid by Employer promptly upon demand by Executive, and any such payment shall be subject to a Gross-Up Payment under this Section 7.3 in the same position as event that Executive would have been had no is subject to Excise Tax been imposed upon or incurred as a result of any Paymenton it.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's ’s dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "“Payment" ” and collectively the "“Payments"”) is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "“Section 4999"”), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer shall pay to Executive an additional cash payment (hereinafter referred to as the "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) 5.1. Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the Payments do not exceed one hundred five percent (105%) of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) 4.1. Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 54) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision amended (the "Code") or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the Payments do not exceed 105% of the greatest amount (the "Reduced Amount") that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (ai) Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company Corporation or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 55(g)) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision amended (the “Code”) or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter are collectively referred to as called the "“Excise Tax"”), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the Payments do not exceed $50,000 more than the greatest amount that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax (the “Reduced Amount”), then no Gross-Up Payment shall be made to the Executive and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event that it is shall be determined (pursuant to (b) below) that the vesting of Awards and aggregate payments or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to distributions by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), affiliated companies to or for the benefit of Executive Executive, whether paid or Executive's dependents, heirs payable or beneficiaries (whether such payment, distribution, transfer, benefit distributed or other event occurs distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this Section 56 (a “Payment”), constitute “parachute payments” (as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any successor provision, and the regulations promulgated thereunder (each a "Payment" collectively, “Section 280G”) but disregarding for this purpose Code Section 280G(b)(2)(A)(ii)), the aggregate “present value” of which (calculated in accordance with Section 280G) equals or exceeds three times Executive’s “base amount” (as such term is defined under Section 280G) and collectively the "Payments") is or was are subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and or any successor provision or any comparable provision of state or local income tax law (collectively, "“Section 4999"), ”) or any interest, penalty penalties or addition additions to tax is or was incurred by Executive with respect to such excise tax (such the excise tax, together with any such interest, penalty penalties or addition additions to tax, are hereinafter collectively referred to as the "“Excise Tax"”)), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes such taxes) imposed upon the Gross-Up Payment, including, without limitation, any Federal, state or local income and employment taxes and Excise Tax (and any interest and penalties imposed with respect to any such taxes), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision is intended Notwithstanding the foregoing, Executive agrees to put Executive in reduce the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result aggregate amount of any Payment.Payments that constitute “parachute payments” to the extent necessary so that the “present value” of such Payments does not equal or exceed three times Executive’s “base amount” (and such Payments are therefore not subject to the excise tax imposed by Section 4999) (the maximum “present value” of the “parachute payments” that could be paid to Executive without giving rise to such excise tax, the “Safe Harbor Cap”); provided, however, that Executive shall not be required to make any such reduction (a “Reduction”) if the reduction necessary to cause such Payments not to exceed the Safe Harbor Cap is more than the sum of $100,000 plus the “present value” of any Payments made pursuant to the 2010 Equity Grants that are considered part of the “parachute payments” (such sum, the “Maximum Potential Reduction”); provided further that:

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or of affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive an additional cash payment (hereinafter referred to as the "Gross-Up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Gross- Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.. (b) Except as provided in subsection (c) below, the determination that a Payment is subject to an Excise Tax shall be made in writing by a certified public accounting firm selected by Executive ("Executive's Accountant"). Such determination shall include the amount of the Gross-Up Payment and detailed computations thereof, including any assumptions used in such computations (the written determination of the Executive's Accountant, hereinafter, the "Executive's Determination"). The Executive's Determination shall be reviewed on behalf of the Company by a certified public accounting firm selected by the Company (the "Company's Accountant"). The Company

Excise Tax Gross-Up. (ai) Notwithstanding anything contained in this Agreement to the contrary, in In the event that it is shall be determined (pursuant to (b) below) or finally determined at any time (as defined in (c)(iii) belowhereafter provided) that any paymentpayment by the Company to the Executive pursuant to this Agreement or otherwise (the "SUBJECT PAYMENTS") in connection with the Executive's termination by the Company without Cause or resignation for Good Reason, distributionin each case, transferprior to the third anniversary of the date hereof, benefit but only if such termination without Cause or other event resignation for Good Reason is in connection with respect to a change in the ownership or effective control of the Company or its predecessors, successors, direct in the ownership of a substantial portion of the assets of the Company within the meaning of Code Section 280G (other than one that the Executive approved or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate voted in favor of any in his capacity as a director and/or stockholder of them, and including any benefit plan of any of themthe Company), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and 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 comparable successor provision of thereto) or to any similar tax imposed by state or local income tax law (collectively, "Section 4999"), such tax or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter taxes being hereafter collectively referred to as the "Excise TaxEXCISE TAX"), then, within 10 days after such determination then the Executive shall be entitled to receive an additional payment or final determination, as the case may bepayments (collectively, the Employer shall pay to Executive an additional cash payment (hereinafter referred to as the "GROSS-UP PAYMENT"). The Gross-Up Payment") Payment shall be in an amount such that that, after payment by Executive reducing the amount of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment by all applicable U.S. federal, state and local taxes (includingcomputed at the maximum marginal rates and including any interest or penalties imposed with respect to such taxes), without limitation, including any income and excise taxes Excise Tax imposed upon on the Gross-Up Payment), Executive retains there remains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or on the Subject Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained If any payment to or in respect of Xxxxxx by the Company or any affiliate, whether pursuant to this Employment Agreement to the contraryor otherwise (a “Payment”), in the event it is determined (pursuant to (b) below) or finally determined (be a “parachute payment” as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (c)(iiithe “Code”) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant a “Parachute Payment”) and also to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999")Code, or any interest, penalty interest or addition to tax is or was penalties are incurred by Executive Xxxxxx with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter being herein collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer then Xxxxxx shall pay be entitled to Executive receive an additional cash payment from the Company (hereinafter referred to as the "“Gross-Up Payment"”) in an amount such that the net amount of such additional payment retained by Xxxxxx, after payment by Executive of all taxesfederal, interest, penalties state and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any local income and excise taxes employment and Excise Taxes imposed upon on the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment shall be equal to the Excise Tax imposed upon such on the Payment. Notwithstanding the foregoing or any other provision of this Employment Agreement, if it shall be determined that Xxxxxx is entitled to a Gross-Up Payment or Paymentsbut that the net present value of the Parachute Payments (calculated at the discount rate in effect under Section 280G of the Code) do not exceed 110% of the Reduced Amount (as defined below), then no Gross-Up Payment shall be made to Xxxxxx and the aggregate amount of the Parachute Payments otherwise payable under this Employment Agreement shall be reduced to the Reduced Amount; provided, that the foregoing reduction shall not be made if the Accounting Firm (as defined below) determines that the net after-tax benefit of the payments to Xxxxxx without the reduction imposed is more than 110% of the net after-tax benefit of the payments to Xxxxxx with the reduction imposed. This provision is intended to put Executive in For purposes of the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.foregoing, the term “

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, and except as set forth in the event last sentence of this subsection 7(a) below, if it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 57) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999")Code, or to any interest, penalty interest or addition to tax is or was incurred by Executive penalties with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter are hereafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that that, after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income and excise employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it is intended determined that the Executive is entitled to put a Gross-Up Payment, but that the aggregate value of the Payments do not exceed 105% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive, and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive an additional cash payment (hereinafter referred to as the "Gross-Up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to the Company distribution by Terex or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries XxXxx (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 510) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by Executive XxXxx with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer then XxXxx shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by Executive XxXxx of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), Executive XxXxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that XxXxx is intended entitled to put Executive a Gross-Up Payment, but that the Payments do not exceed 105% of the greatest amount (the "Reduced Amount") that could be paid to XxXxx such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to XxXxx and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (ai) Notwithstanding anything contained in this Agreement to the contrary, in In the event that it is shall be determined (pursuant to (b) below) or finally determined at any time (as defined in (c)(iii) belowhereafter provided) that any paymentpayment by the Company to the Executive pursuant to this Agreement or otherwise (the “Subject Payments”) in connection with the Executive’s termination by the Company without Cause or resignation for Good Reason, distributionin each case, transferprior to the third anniversary of the date hereof, benefit but only if such termination without Cause or other event resignation for Good Reason is in connection with respect to a change in the ownership or effective control of the Company or its predecessors, successors, direct in the ownership of a substantial portion of the assets of the Company within the meaning of Code Section 280G (other than one that the Executive approved or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate voted in favor of any in his capacity as a director and/or stockholder of them, and including any benefit plan of any of themthe Company), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and 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 comparable successor provision of thereto) or to any similar tax imposed by state or local income tax law (collectively, "Section 4999"), such tax or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter taxes being hereafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination then the Executive shall be entitled to receive an additional payment or final determination, as the case may bepayments (collectively, the Employer shall pay to Executive an additional cash payment (hereinafter referred to as the "“Gross-Up Payment") ”). The Gross-Up Payment shall be in an amount such that that, after payment by Executive reducing the amount of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment by all applicable U.S. federal, state and local taxes (includingcomputed at the maximum marginal rates and including any interest or penalties imposed with respect to such taxes), without limitation, including any income and excise taxes Excise Tax imposed upon on the Gross-Up Payment), Executive retains there remains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or on the Subject Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, and except as set forth in the event last sentence of this subsection 7(a) below, if it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 57) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and or to any successor provision interest or any comparable provision of state or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive penalties with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter are hereafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that that, after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it is intended determined that the Executive is entitled to put a Gross-Up Payment, but that the aggregate value of the Payments do not exceed 105% of the greatest amount (the “Reduced Amount”) that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive, and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to the Company distribution by Terex or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries DeFeo (whether such payment, distribution, transfer, benefit paid or other event occurs xxxxxle or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 510) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by Executive DeFeo with respect to such excise sxxx xxcise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer then DeFeo shall pay be entxxxxx to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by Executive DeFeo of all taxes, interest, taxes (ixxxxxing any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), Executive DeFeo retains an amount of amouxx xx the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that DeFeo is intended entitled to put Executive in a Xxxxx-Up Payment, but that the same position as Executive 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 have been had not give rise to any Excise Tax, then no Excise Tax been imposed upon or incurred as a result of any PaymentGross-Up Payment shall be made to DeFeo and the Payments, xx the aggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or of affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive an additional cash payment (hereinafter referred to as the "Gross-Up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment. (b) Except as provided in subsection (c) below, the determination that a Payment is subject to an Excise Tax shall be made in writing by a certified public accounting firm selected by Executive ("Executive's Accountant"). Such determination shall include the amount of the Gross-Up Payment and detailed computations thereof, including any assumptions used in such computations (the written determination of the Executive's Accountant, hereinafter, the "Executive's Determination"). The Executive's Determinatio n shall be reviewed on behalf of the Company by a certified public accounting firm selected by the Company (the "Company's Accountant").

Excise Tax Gross-Up. (a) Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transferaward, benefit or other event with respect to distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), its affiliates to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 57) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision corresponding provisions of state or local income tax law (collectively, "Section 4999")law, or any interest, penalty interest or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxestaxes (including any Excise Tax, interest, penalties and additions to income tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes or employment tax) imposed upon the Gross-Up Payment)Payment and any interest or penalties imposed with respect to such taxes, the Executive retains an amount of from the Gross-Up Payment an amount equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code does not exceed by more than $25,000 the greatest amount (the "Safe Harbor Amount") that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the same position as aggregate, are reduced to the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 4(ii), unless an alternative method of reduction is elected by the Executive prior to the effective date of the event that triggers the Payments. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would have been had not result in a reduction of the Payments to the Safe Harbor Amount, no Excise Tax been imposed upon or incurred as a result of any Paymentamounts payable under this Agreement shall be reduced pursuant to this Section 7.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (bSection 5(b) below) or finally determined (as defined in (c)(iiiSection 5(c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "PaymentPAYMENT" and collectively the "PaymentsPAYMENTS") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amendedamended (the "CODE"), and any successor provision or any comparable provision of state or local income tax law (collectively, "Section SECTION 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise TaxEXCISE TAX"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive an additional cash payment (hereinafter referred to as the "GrossGROSS-Up PaymentUP PAYMENT") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) 1. Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5Sec. 15) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision amended (the "Code") or any comparable provision of state ---- interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the Payments do not exceed 105% of the greatest amount (the "Reduced Amount") that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (ai) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (bSection 5(j)(ii) below) or finally determined (as defined in (c)(iiiSection 5(j)(iii)(C) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive Employee or ExecutiveEmployee's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 55(j)) (each a "PaymentPAYMENT" and collectively the "PaymentsPAYMENTS") is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended, and or any successor provision or any comparable provision of state or local income tax law (collectively, "Section SECTION 4999"), or any interest, penalty or addition to tax is or was incurred by Executive Employee with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter herein collectively referred to as the "Excise TaxEXCISE TAX"), then, within 10 ten (10) days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive Employee an additional cash payment (hereinafter referred to as the "GrossGROSS-Up PaymentUP PAYMENT") in an amount such that after payment by Executive Employee of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive Employee in the same position as Executive Employee would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, in the event that it is shall be determined (pursuant to (b) below) that the vesting of Awards, aggregate payments or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to distributions by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), affiliated companies to or for the benefit of Executive Executive, whether paid or Executive's dependents, heirs payable or beneficiaries (whether such payment, distribution, transfer, benefit distributed or other event occurs distributable pursuant to the terms of this Agreement or otherwise, otherwise but determined without regard to any additional payments required under this Section 5) 6 (each a "Payment"), constitute "parachute payments" and collectively (as such term is defined under Section 280G of the Internal Revenue Code of 1986, as amended (the "PaymentsCode") or any successor provision, and the regulations promulgated thereunder (collectively, "Section 280G")) the aggregate present value of which equals or exceeds three times Executive's "base amount" (as such term is or was defined under Section 280G) and are therefore subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and or any successor provision or any comparable provision of state or local income tax law (collectively, "Section 4999"), ) or any interest, penalty penalties or addition additions to tax is or was incurred by Executive with respect to such excise tax (such the total excise tax, together with any such interest, penalty penalties or addition additions to tax, are hereinafter collectively referred to as the "Excise Tax")), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any Federal, state or local income and excise employment taxes and Excise Tax (and any interest and penalties imposed with respect to any such taxes) imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision is intended Notwithstanding the foregoing, Executive agrees to put Executive in reduce the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result aggregate amount of any PaymentPayments that constitute "parachute payments" to the extent necessary so that such Payments do not equal or exceed three times Executive's "base amount" (and therefore are not subject to the excise tax imposed by Section 4999); provided, however, that Executive shall not be required to make any such reduction if the reduction necessary to cause such Payments not to equal or exceed three times Executive's "base amount" is more than $100,000.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payments or other event with respect distributions by Employer to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to Executive or for the benefit of Executive or Executive's dependents, heirs or beneficiaries benefit (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 53.4) (each a "Payment" and collectively the "Payments") is or was are subject to the excise tax imposed by Section 4999 (or any successor provisions) of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law amended (collectively, the "Section 4999Code"), or any interest, interest or penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that that, after payment by Executive of all taxes, interest, penalties taxes (including any income taxes and additions to tax Excise Tax imposed with respect to on the Gross-Up Payment (including, without limitation, and any income interest and excise taxes penalties imposed upon the Gross-Up Paymentwith respect thereto)), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon all such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had ; provided, however, that, if no Excise Tax been would be imposed upon or incurred as on such Payments were the aggregate amount of all such Payments reduced by an amount not to exceed 5% of such aggregate amount, then Executive shall forfeit and Employer shall not be obligated to pay the amount of such Payments (which shall not exceed 5% of such aggregate amount) necessary to avoid imposition of the Excise Tax on such Payments (a result of any Payment"Payment Reduction"), and Executive shall be entitled to designate the particular Payments (and the amounts thereof) to be so reduced.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transferaward, benefit or other event with respect to distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), its affiliates to or for the benefit of the Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 57) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision corresponding provisions of state or local income tax law (collectively, "Section 4999")law, or any interest, penalty interest or addition to tax is or was penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as then the case may be, the Employer Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by the Executive of all taxestaxes (including any Excise Tax, interest, penalties and additions to income tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes or employment tax) imposed upon the Gross-Up Payment)Payment and any interest or penalties imposed with respect to such taxes, the Executive retains an amount of from the Gross-Up Payment an amount equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that the Executive is intended entitled to put a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code does not exceed by more than $25,000 the greatest amount (the “Safe Harbor Amount”) that could be paid to the Executive such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-up Payment shall be made to the Executive and the amount payable under Section 4(ii) of this Agreement shall be reduced so that the Payments, in the same position as Executive aggregate, are reduced to the Safe Harbor Amount. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would have been had not result in a reduction of the Payments to the Safe Harbor Amount, no Excise Tax been imposed upon amounts payable under this Agreement shall be reduced pursuant to this Section 7. Notwithstanding any other provision in this Section 7, in the event a Change in Control occurs after March 24, 2009 (other than pursuant to an acquisition agreement entered into by the Company and the acquiror on or incurred as a result prior to March 24, 2009), for purposes of this Section 7 the amount of any PaymentGross-Up Payment resulting from such Change in Control shall be no greater than $1 million.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payments or other event with respect distributions by Employer to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to Executive or for the Executive’s benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 53.4) (each a "Payment" and collectively the "“Payments"”) is or was are subject to the excise tax imposed by Section 4999 (or any successor provisions) of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law amended (collectively, "Section 4999"the “Code”), or any interest, interest or penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer then Executive shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that that, after payment by Executive of all taxes, interest, penalties taxes (including any income taxes and additions to tax Excise Tax imposed with respect to on the Gross-Up Payment (including, without limitation, and any income interest and excise taxes penalties imposed upon the Gross-Up Paymentwith respect thereto)), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon all such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had ; provided, however, that, if no Excise Tax been would be imposed upon or incurred as on such Payments were the aggregate amount of all such Payments reduced by an amount not to exceed 5% of such aggregate amount, then Executive shall forfeit and Employer shall not be obligated to pay the amount of such Payments (which shall not exceed 5% of such aggregate amount) necessary to avoid imposition of the Excise Tax on such Payments (a result of any Payment“Payment Reduction”), and Executive shall be entitled to designate the particular Payments (and the amounts thereof) to be so reduced.

Excise Tax Gross-Up. (a) Notwithstanding anything contained If the Executive becomes entitled to payment ------------------- in this Agreement to the contraryaccordance with paragraph 4, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event then with respect to such payment under paragraph 4 (and with respect to any other payment made to the Company Executive, including without limitation, the vesting of an option or its predecessors, successors, direct other cash or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, non-cash benefit or other event occurs property, whether pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to any additional payments required under this Section 5arrangement, or agreement with the Company) (each a "Payment" and collectively the "Total Payments") is ), if such Total Payments are or was become subject to the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended, and any successor provision amended (the "Code") (or any comparable provision of state or local income similar tax law that may hereafter be imposed) (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive Employee as soon as practicable after such Excise Tax becomes due, an additional cash payment amount (hereinafter referred to as the "Gross-Up up Payment") in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (includingwhich 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 after any reduction for any federal, state and local income or employment tax and excise taxes imposed upon Excise Tax on the Gross-Up Paymentup Payment provided for by this paragraph 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) and (b), Executive retains where (a) is the Total Payments, and (b) is 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 up Payment equal is to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentbe made.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in the event it is determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's ’s dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "“Payment" ” and collectively the "“Payments"”) is or was subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law (collectively, "“Section 4999"”), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with any such interest, penalty or addition to tax, hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer Company shall pay to Executive an additional cash payment (hereinafter referred to as the "“Gross-Up Payment"”) in an amount such that after payment by Executive of all taxes, interest, penalties and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes imposed upon the Gross-Up Payment), Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrary, in In the event it is determined (pursuant of a Change in Control, Compaq, at its sole expense, shall cause its independent auditors promptly to (b) below) review all payments, distributions and benefits that have been made to or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit or other event with respect to the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of themprovided to, and including are to be made to or provided to, you under this Agreement, and any benefit other agreement and plan of any of them)benefiting you, to or for determine the benefit applicability of Executive or Executive's dependents, heirs or beneficiaries (whether such payment, distribution, transfer, benefit or other event occurs pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 5) (each a "Payment" and collectively the "Payments") is or was subject to the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law amended (collectively, the "Section 4999Code"), or any interest, penalty or addition to tax is or was incurred by Executive with respect to such excise tax (such excise tax, together with . If Compaq's independent auditors determine that any such interestpayments, penalty distributions or addition benefits are subject to tax, hereinafter collectively referred to excise taxes as provided under Section 4999 of the Code (the "Excise Tax"), thenthen such payment, within 10 days after such determination distributions, or final determination, as benefits (the case may be, the Employer "Original Payment(s)") shall pay to Executive be increased by an additional cash payment amount (hereinafter referred to as the "Gross-Up Paymentup Amount") in an amount such that that, after payment by Executive of the Company withholds all taxestaxes due, interest, penalties including any excise and additions to tax employment taxes imposed with respect to on the Gross-Up Payment up 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 be 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, penalties and interest) imposed on any income Gross-up Amount. 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), you will be entitled to receive a Gross-up Amount calculated on the basis of the Original Payment(s) you report in such tax return, within 30 days of the filing of such tax return. You agree that, for the purposes of the foregoing sentence, you are not required to file a tax return until you have obtained the maximum number and excise taxes 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 your tax returns, you shall be entitled to receive the full Gross-Up Payment)up Amount calculated on the basis of the additional amount of Excise Tax determined to be payable by such tax authority (including related penalties and interest) from Compaq within 30 days of such determination as long as you have taken all reasonable actions to minimize any such amounts. If any tax authority finally determines the Excise Tax to be less than the amount taken into account hereunder in calculating the Gross-up Amount, Executive retains an amount you shall repay to Compaq, within 30 days of your receipt of a refund resulting from that determination, the portion of the Gross-Up Payment equal up Amount attributable to such reduction (plus the refunded portion of Gross-up Amount attributable to the Excise Tax and federal, state and local income and employment taxes imposed upon on the Gross-up Amount being repaid, less any additional income tax resulting from such Payment or Payments. This provision is intended to put Executive in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentrefund).

Excise Tax Gross-Up. (a) Notwithstanding anything contained in this Agreement to the contrarycontrary and except as set forth below, in the event it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to the Company distribution by Terex or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit of Executive or Executive's dependents, heirs or beneficiaries XxXxx (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 510) (each a "“Payment" and collectively the "Payments"”) is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state interest or local income tax law (collectively, "Section 4999"), or any interest, penalty or addition to tax is or was penalties are incurred by Executive XxXxx with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "“Excise Tax"”), then, within 10 days after such determination or final determination, as the case may be, the Employer then XxXxx shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the "a “Gross-Up Payment"”) in an amount such that after payment by Executive XxXxx of all taxes, interest, taxes (including any interest or penalties and additions to tax imposed with respect to the Gross-Up Payment (such taxes), including, without limitation, any income taxes (and excise taxes any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment), Executive XxXxx retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision Notwithstanding the foregoing, if it shall be determined that XxXxx is intended entitled to put Executive a Gross-Up Payment, but that the Payments do not exceed 105% of the greatest amount (the “Reduced Amount”) that could be paid to XxXxx such that the receipt of Payments would not give rise to any Excise Tax, then no Gross-Up Payment shall be made to XxXxx and the Payments, in the same position as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Paymentaggregate, shall be reduced to the Reduced Amount.

Excise Tax Gross-Up. (a) Notwithstanding anything contained Anything in this Agreement to the contrarycontrary notwithstanding, in the event if it is shall be determined (pursuant to (b) below) or finally determined (as defined in (c)(iii) below) that any payment, distribution, transfer, benefit payment or other event with respect to distribution by the Company or its predecessors, successors, direct or indirect subsidiaries or affiliates (or any predecessor, successor or affiliate of any of them, and including any benefit plan of any of them), to or for the benefit Employee's benefit, or any acceleration of Executive or Executive's dependents, heirs or beneficiaries vesting and exercisability of Company stock options (whether such payment, distribution, transfer, benefit paid or other event occurs payable or distributed or distributable or otherwise occurring pursuant to the terms of this Agreement or otherwisepursuant to the Employment Agreement or any other compensatory Company plan or arrangement, but determined without regard to any additional payments required under this Section 5taking into account the Gross-Up Payment, as hereinafter defined) (each a "Payment" and collectively the "Payments") is or was would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended, and any successor provision or any comparable provision of state or local income tax law amended (collectively, the "Section 4999Code"), or any interest, penalty interest or addition to tax is or was penalties are incurred by Executive Employee with respect to such excise tax (such excise tax, together with any such interestinterest and penalties, penalty or addition to tax, are hereinafter collectively referred to as the "Excise Tax"), then, within 10 days after such determination or final determination, as the case may be, the Employer then Employee shall pay be entitled to Executive receive an additional cash payment (hereinafter referred to as the a "Gross-Up Payment") in an amount such that that, after payment by Executive Employee or the Company on Employee's behalf of all taxesFederal, interest, penalties state and additions to tax imposed with respect to the Gross-Up Payment (including, without limitation, any income and excise local taxes imposed upon the Gross-Up Payment, including, without limitation, any income taxes, withholding taxes, payroll taxes and the Excise Tax (and any interest and penalties imposed with respect thereto), Executive Employee retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Payment or the Payments. This provision All determinations required to be made under this Section 3, including whether and when a Gross-Up Payment is intended required and the amount of such Gross-Up Payment and the assumptions to put Executive be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm as may be designated by Employee (the same position "Accounting Firm") which shall provide detailed supporting calculations both to the Company and Employee within fifteen (15) business days of the receipt of notice from Employee that there has been a Payment, or such earlier time as Executive would have been had no Excise Tax been imposed upon or incurred as a result of any Payment.is requested by the