Common use of Excise Tax Gross-Up Clause in Contracts

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “Payments”) would be equal subject to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant becomes entitled to the terms payments and benefits provided under the provisions of this Agreement or Section 7 (“Payments and Benefits”), and if any other plan, arrangement or agreement of the Company (or Payments and Benefits will be subject to any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), as determined as provided belowor successor sections thereto (“Excise Tax”), the Company shall pay to or for the Executive, at benefit of the time specified in Section 5.7(b) below Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and Benefits and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect theretopayments provided for under this Section 7(a)(v), shall be equal to the total Paymentsamount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) any other payments or benefits received or to be received by the total amount Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Payments Code or on an event, including (without limitation) a termination of the Executive’s employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company or such person) shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute payment” within the meaning payments, including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such “excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, ; (2ii) the amount of the Payments that and Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments and Benefits or (B) the amount of “excess parachute payments” payments within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofi), above); and (3iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company’s independent auditors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in on the calendar year in which the Gross-Up Payment is to be madetermination date of employment, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking taxes based on the marginal rate referenced above. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account any limitations applicable hereunder at the termination date, the Executive shall repay to individuals subject the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to federal such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the highest marginal ratesrate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any payment, the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess, but only to the extent that such interest, penalties or additions would not have been reduced by prompt payment by the Executive to the appropriate tax authority of the Gross-Up Payments previously received) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments and Benefits.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “Payments”) would be equal subject to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company company, Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (ax) In the event that If any payment to or benefit received or to be received in respect of the Executive by the Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate, whether pursuant to this Employment Agreement or otherwise (a “Payment”), is determined to be a “parachute payment” as defined in Section 280G(b)(2) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (such payment, a “Parachute Payment”) and also to be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, being herein collectively referred to as the “Excise Tax”), as determined as provided below, then the Executive shall be entitled to receive an additional payment from the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) in an amount such that the net amount of such additional payment retained by the Executive, after deduction payment of the Excise Tax on payments and any all federal, state and local income and employment or other tax and the Excise Tax upon Taxes imposed on the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total PaymentsExcise Tax imposed on the Payment. Notwithstanding the foregoing or any other provision of this Employment Agreement, if it shall be determined that the Executive is entitled to a Gross-Up Payment but that the net present value of the Parachute Payments (calculated at the discount rate in effect under Section 280G of the Code) do not exceed one hundred ten percent (110%) of the Reduced Amount (as defined below), then no Gross-Up Payment shall be made to the Executive 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 the Executive without the reduction imposed is more than one hundred ten percent (110%) of the net after-tax benefit of the payments to the Executive with the reduction imposed. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Paymentforegoing, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.term “

Excise Tax Gross-Up. (a) In To the event extent that any payment payments or benefit benefits received or to be received by the Executive (excluding payments to be made pursuant to this Section 22) (the terms of “Total Payments”) pursuant to this Agreement or any other plan, arrangement or agreement of the Company (with American General Corporation or any affiliate) (collectively, the “Payments”) would Parent shall be equal subject to the Excise Tax (the “Excise Tax”) excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), or any successor provision of the Code (any such excise tax is referred to in this Section 22 as determined as provided belowthe “Excise Tax”), then the Company benefit or payment shall pay to the Executive, at the time specified in Section 5.7(b) below be increased by an additional amount (referred to in this Section 22 as the “Gross-Up Additional Payment”) such that the net amount retained received by the Executive, after deduction of the paying any applicable Excise Tax on payments and any federal, state and or local income and employment or other tax and the Excise Tax upon the Gross-Up FICA taxes on such Additional Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total amount that the Executive would have received if such Excise Tax were not applicable to the Total Payments. For purposes of determining whether any of the Total Payments will shall be subject to the Excise Tax and the amounts amount of such Excise Tax, (1) the total amount all of the Total Payments shall will be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Executive and selected by PricewaterhouseCoopers LLP (the Company“Auditor”), a Payment such payments or benefits (in whole or in part) does do not constitute a parachute payments, including by reason of Section 280G(b)(4)(A) of the Code; (2) all “excess parachute paymentpayments” within the meaning of section 280G(b)(2Section 280G(b)(1) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that Code shall be treated as subject to the Excise Tax shall be equal to unless, in the lesser opinion of (A) the total amount of the Payments or (B) the amount of “Tax Counsel, such excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(1Section 280G(b)(4)(B) of the Code Code) in excess of the base amount (after applying clause (1as the term “base amount” is defined in Section 280G(b)(3) hereof)of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Additional Payment, the Executive shall be deemed to pay federal income taxes tax at the highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Additional Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in of the calendar year in Executive on the date on which the Gross-Up Additional Payment is to be madepaid for purposes of this Section 22, net of the maximum reduction in federal income taxes that can which could be obtained from the deduction of such state and local taxes by such Executive. Payment shall be in the form of additional W-2 withholding if Executive is an employee of the Company at the time of payment. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Additional Payment, the Executive shall repay to the Company, within ten (10) business days immediately following the date that the amount of such reduction in the Excise Tax is finally determined, the portion of the Additional Payment attributable to the amount of such reduction (including the Excise Tax component and the federal, state and local income and employment tax components of the Additional Payment) to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the taxable income and wages of the Executive for purposes of federal, state and local income and employment taxes, taking plus interest on the amount of such repayment at 120 percent of the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Additional Payment (including by reason of any limitations applicable payment the existence or amount of which cannot be determined at the time of the Additional Payment), the Company shall make another Additional Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to individuals such excess) within ten (10) business days immediately following the date that the amount of such excess if finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability of Excise Tax with respect to the Total Payments. For any taxable year in which any payment constituting a part of Total Payments is made or is treated as made or in which any payment is made pursuant to this Section 22, the obligation of the Company and the Executive hereunder shall continue until the later of (i) 30 days after the date on which the authority of the Internal Revenue Service to assess additional tax with respect to the Federal Income Tax return of the Executive for that year expires, or (ii) 30 days after the date on which any Internal Revenue Service audit, examination or other proceeding or any claim for refund with respect to such return is finally resolved or settled. The Executive shall have the right to compromise or settle any dispute concerning the tax treatment of any payment constituting or that is alleged by the Internal Revenue Service to constitute a part of the Total Payments or any payment required pursuant to this Section 22, and the Company agrees to be bound by any such compromise or settlement, and to treat any payment made by Executive as a result of such compromise or settlement as a payment subject to federal the first paragraph of this Section 22 for which Executive is entitled to full reimbursement and gross-up treatment as provided therein; provided, however, that the Company may, at its cost and expense, assume responsibility for the handling and resolution of any such dispute by written notice to the Executive of its intent to do so, provided further that the Company shall reimburse the Executive for any additional taxes payable as a result of such resolution or as a result of any cost or expense incurred by the Company being or being deemed to be income for tax at purposes to the highest marginal ratesExecutive, such payment to be grossed-up to the same extent and in the same manner as any payments made pursuant to the first paragraph of this Section 22. The obligations of the Company under this Section 22 shall be absolute and unconditional and shall survive the termination of this Agreement irrespective of the reason for such termination, and shall survive the termination of the Executive’s employment with the Company for any reason. The Company’s obligations under this Section 22, shall not be affected by or subject to the limitations of the Company’s obligations set forth in Section 8(a), 8(b)(ii) or 8(c)(vi) of this Agreement. All amounts payable under this Section 22 shall be deemed fully due and payable, without interest thereon, as of the Effective Date.”

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or of any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”') would be equal subject to the Excise Tax excise tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), `), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the the. maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms Terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal subject to the Excise Tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal subject to the total PaymentsTotal payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section 280G(b)(2) of the Code, and all “"excise parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive Xx. Xxxxxxx pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (otherwise from ARAMARK or any affiliate) affiliate (collectively, the “Payments”) would be equal subject to the Excise Tax excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company ARAMARK shall pay to the ExecutiveXx. Xxxxxxx, at the time specified in Section 5.7(b(b) below below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the ExecutiveXx. Xxxxxxx, after deduction of the Excise Tax on payments the Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Paymentpayment provided for by this Section (a), and any interest, penalties or additions to tax payable by the company Executive Xx. Xxxxxxx with respect thereto, shall be equal to the total Paymentsvalue of the Payments at the time such Payments are to be made as if the Excise Tax imposed by Section 4999 did not apply. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by ARAMARK’s independent auditors and reasonably acceptable to Xx. Xxxxxxx (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company), a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section Section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive Xx. Xxxxxxx shall be deemed to pay federal income taxes tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal effective rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s Xx. Xxxxxxx’x residence or place of employment in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by If the Executive becomes entitled to one or more payments (including, without limitation, the vesting of any non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan, arrangement arrangement, or agreement of with the Company (all such amounts, exclusive of additional payments pursuant to this Section 10, being referred to herein as the "Total Payments"), which are or any affiliate) (collectively, the “Payments”) would be equal become subject to the Excise Tax (the “Excise Tax”) tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), as determined as provided below, the Company shall pay to the Executive, Executive at the time specified in Section 5.7(b) below an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the reduction for (x) any Excise Tax (including any penalties or interest thereon) on payments the Total Payments and on the Gross-Up Payment and (y) any federal, state and state, or local income and or employment or other tax and the Excise Tax upon on the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) the total amount of the Total Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent tax counsel (“Tax Counsel”) or auditors of nationally recognized standing selected by the Company and reasonably acceptable to the Executive and selected by ("Independent Advisors"), the Company, a Payment (in whole or in part) does Total Payments do not constitute a “parachute payment” payments, or such excess parachute payments in excess of the base amount within the meaning of section 280G(b)(2Section 280G(b)(3) of the Code, Code represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or such “excess parachute payments” (in whole or in part) are otherwise not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), ; and (3ii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Independent Advisors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. If more than one Gross- Up Payment is made (including for this purpose any parachute excise tax gross-up payment pursuant to the terms of any other plan, arrangement, or agreement with the Company), the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed (A) to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in for the calendar year in which the Gross-Up Payment is to be made and made; (B) to pay any applicable state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxestaxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, taking state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The Gross-Up Payment shall be paid on or before the earlier of (i) the 30th day after it has been determined that the Total Payments (or any portion thereof) are subject to the Excise Tax, or (ii) the date on which the Excise Tax becomes due and payable to the taxing authorities; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined by the Independent Advisors, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined by the Independent Advisors to have been due, the Executive shall repay to the Company the amount of such excess, plus interest at the rate provided in Section 1274(b)(2)(B) of the Code, within five days following the Company's demand therefor. In the event that the Excise Tax is subsequently determined, in a final judicial determination or a final administrative settlement to which the Executive is a party (a "Final Determination"), to be less than the amount taken into account any limitations applicable to individuals subject to federal income tax hereunder at the highest marginal ratestime the Gross-Up Payment is made, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to the Executive or otherwise realized as a benefit by the Executive), the portion of the Gross-Up Payment that would not have been paid if such Excise Tax as finally determined had been applied in initially calculating the Gross-Up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined in a Final Determination to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess if finally determined. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and the Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. The Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-Up Payment hereunder.

Excise Tax Gross-Up. (a) In the event that the Executive becomes entitled to the payments and benefits provided under the provisions of this Section 7 ("Payments and Benefits"), and if any payment of the Payments and Benefits will be subject to any excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), or successor sections thereto ("Excise Tax"), the Company shall pay to or for the benefit of the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and Benefits and any federal, state and local income tax and Excise Tax upon the payments provided for under this Section 7(a)(v), shall be equal to the amount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Code or on an event, including (without limitation) a termination of the Executive's employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company (or any affiliatesuch person) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute payment” within the meaning payments, including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such “excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, ; (2ii) the amount of the Payments that and Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments and Benefits or (B) the amount of “excess parachute payments” payments within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofi), above); and (3iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company's independent auditors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in on the calendar year in which the Gross-Up Payment is to be madetermination date of employment, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking taxes based on the marginal rate referenced above. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account any limitations applicable hereunder at the termination date, the Executive shall repay to individuals subject the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to federal such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the highest marginal ratesrate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment, the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess, but only to the extent that such interest, penalties or additions would not have been reduced by prompt payment by the Executive to the appropriate tax authority of the Gross-Up Payments previously received) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments and Benefits.

Excise Tax Gross-Up. If Executive becomes entitled to one or more payments (a) In including, without limitation, the event that vesting of any payment non-cash benefit or benefit received or to be received by the Executive property), whether pursuant to the terms of this Agreement or any other plan, arrangement arrangement, or agreement of with the Company (all such amounts, exclusive of additional payments pursuant to this Section 9, being referred to herein as the "Total Payments"), which are or any affiliate) (collectively, the “Payments”) would be equal become subject to the Excise Tax (the “Excise Tax”) tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any similar tax that may hereafter be imposed) (the "Excise Tax"), as determined as provided below, the Company shall pay to the Executive, Executive at the time specified in Section 5.7(b) below an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the reduction for (x) any Excise Tax (including any penalties or interest thereon) on payments the Total Payments and on the Gross-Up Payment and (y) any federal, state and state, or local income and or employment or other tax and the Excise Tax upon on the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total sum of (a) the Total Payments, and (b) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-Up Payment in Executive's adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) the total amount of the Total Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent tax counsel (“Tax Counsel”) or auditors of nationally recognized standing selected by the Company and reasonably acceptable to Executive and selected by ("Independent Advisors"), the Company, a Payment (in whole or in part) does Total Payments do not constitute a “parachute payment” payments, or such excess parachute payments in excess of the base amount within the meaning of section 280G(b)(2Section 280G(b)(3) of the Code, Code represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code or such “excess parachute payments” (in whole or in part) are otherwise not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), ; and (3ii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Independent Advisors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. If more than one Gross-Up Payment is made (including for this purpose any parachute excise tax gross-up payment pursuant to the terms of any other plan, arrangement, or agreement with the Company), the amount of each Gross-Up Payment shall be computed so as not to duplicate any prior Gross-Up Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed (A) to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in for the calendar year in which the Gross-Up Payment is to be made and made; (B) to pay any applicable state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxestaxes if paid in such year (determined without regard to limitations on deductions based upon the amount of Executive's adjusted gross income); and (C) to have otherwise allowable deductions for federal, taking state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in Executive's adjusted gross income. The Gross-Up Payment shall be paid on or before the earlier of (i) the 30th day after it has been determined that the Total Payments (or any portion thereof) are subject to the Excise Tax, or (ii) the date on which the Excise Tax becomes due and payable to the taxing authorities; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by the Independent Advisors, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined by the Independent Advisors to have been due, Executive shall repay to the Company the amount of such excess, plus interest at the rate provided in Section 1274(b)(2)(B) of the Code, within five days following the Company's demand therefor. In the event that the Excise Tax is subsequently determined, in a final judicial determination or a final administrative settlement to which Executive is a party (a "Final Determination"), to be less than the amount taken into account any limitations applicable to individuals subject to federal income tax hereunder at the highest marginal ratestime the Gross-Up Payment is made, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive), the portion of the Gross-Up Payment that would not have been paid if such Excise Tax as finally determined had been applied in initially calculating the Gross-Up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined in a Final Determination to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Company shall have the right to control all proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties thereon); provided, however, that the Company's control over any such proceedings shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any Gross-Up Payment hereunder.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1280G(b)(l) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1280G(b)(l) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms Terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal to the Excise Tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total PaymentsTotal payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “"excise parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant becomes entitled to the terms payments and benefits provided under the provisions of this Agreement or Section 7 (“Payments and Benefits”), and if any other plan, arrangement or agreement of the Company (or Payments and Benefits will be subject to any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), as determined as provided belowor successor sections thereto (“Excise Tax”), the Company shall pay to or for the Executive, at benefit of the time specified in Section 5.7(b) below Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and Benefits and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect theretopayments provided for under this Section 7(a)(vi), shall be equal to the total Paymentsamount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) any other payments or benefits received or to be received by the total amount Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Payments Code or on an event, including (without limitation) a termination of the Executive’s employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company or such person) shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute payment” within the meaning payments, including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such “excess parachute payments” payments (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.in

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant becomes entitled to the terms payments and benefits provided under the provisions of this Agreement or Section 7 (“Payments and Benefits”), and if any other plan, arrangement or agreement of the Company (or Payments and Benefits will be subject to any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the “Code”), as determined as provided belowor successor sections thereto (“Excise Tax”), the Company shall pay to or for the Executive, at benefit of the time specified in Section 5.7(b) below Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and Benefits and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect theretopayments provided for under this Section 7(a)(vi), shall be equal to the total Paymentsamount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) any other payments or benefits received or to be received by the total amount Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Payments Code or on an event, including (without limitation) a termination of the Executive’s employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company or such person) shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute payment” within the meaning payments, including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such “excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, ; (2ii) the amount of the Payments that and Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments and Benefits or (B) the amount of “excess parachute payments” payments within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofi), above); and (3iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company’s independent auditors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in on the calendar year in which the Gross-Up Payment is to be madetermination date of employment, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking taxes based on the marginal rate referenced above. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account any limitations applicable hereunder at the termination date, the Executive shall repay to individuals subject the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to federal such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the highest marginal ratesrate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any payment, the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess, but only to the extent that such interest, penalties or additions would not have been reduced by prompt payment by the Executive to the appropriate tax authority of the Gross-Up Payments previously received) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments and Benefits.

Excise Tax Gross-Up. (a) In the event that the Executive becomes entitled to the payments and benefits provided under the provisions of this Section 7 ("Payments and Benefits"), and if any payment of the Payments and Benefits will be subject to any excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended from time to time (the "Code"), or successor sections thereto ("Excise Tax"), the Company shall pay to or for the benefit of the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Payments and Benefits and any federal, state and local income tax and Excise Tax upon the payments provided for under this Section 7(a)(vi), shall be equal to the amount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Code or on an event, including (without limitation) a termination of the Executive's employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company (or any affiliatesuch person) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute payment” within the meaning payments, including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such “excess parachute payments” payments (in whole or in part) are not subject to the Excise Taxrepresent reasonable compensation for services actually rendered, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4Section 280G(b)(4)(B) of the Code. For purposes of determining the amount , in excess of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals Base Amount (as defined in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.Section 280G(b)(3) of

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or of any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal subject to the Excise Tax excise tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code code (after applying clause cause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant becomes entitled to the terms payments and benefits provided under the provisions of this Agreement or any other plan, arrangement or agreement of his employment with the Company (“Payments and Benefits”), if any of the Payments and Benefits will be subject to any excise tax imposed under Section 4999 of the Code, or any affiliate) successor sections thereto (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), as determined as provided below, the Company or TRIV shall pay to or for the Executive, at benefit of the time specified in Section 5.7(b) below Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and Benefits and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, payments shall be equal to the total Paymentsamount of the Payments and Benefits. For purposes of determining whether any of the Payments and Benefits will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) any other payments or benefits received or to be received by the total amount Executive that are contingent on a transaction described in Section 280G(b)(2)(A)(i) of the Payments Code or on an event, including (without limitation) a termination of the Executive’s employment that is materially related to such a transaction (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in such a transaction, or any person affiliated with the Company or such person) shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent thatunless, in the opinion of tax counsel (“Tax Counsel”) selected by the Company and reasonably acceptable to Executive and selected by the CompanyExecutive, a Payment such other payments or benefits (in whole or in part) does do not constitute a “parachute paymentpayments,” within the meaning including by reason of section 280G(b)(2Section 280G(b)(4)(A) of the Code, or such excess “excess parachute payments” (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of Section 280G(b)(4)(B) of the Code, in excess of the Base Amount (as defined in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, ; (2ii) the amount of the Payments that and Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments and Benefits or (B) the amount of “excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofi), above); and (3iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company’s independent auditors in accordance with the principles of sections Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in on the calendar year in which the Gross-Up Payment is to be madetermination date of employment, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking taxes based on the marginal rate referenced above. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the termination date, the Executive shall repay to the Company or TRIV, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any limitations applicable payment, the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company or TRIV shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to individuals such excess, but only to the extent that such interest, penalties or additions would not have been reduced by prompt payment by the Executive to the appropriate tax authority of the Gross-Up Payments previously received) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments and Benefits. If the Executive consents in writing, notwithstanding the foregoing, in the event of a Change in Control, if any of the Payments and Benefits under this Agreement would be subject to federal income tax at the highest marginal ratesExcise Tax, the Company or TRIV, if duly authorized by the Board, shall, in accordance with the provisions under Treasury Regulation Section 1.280G-1, submit all “parachute payments” within the meaning of Code Section 280G(b)(2) to be otherwise received by the Executive to a vote of approval by the stockholders of the Company. Executive acknowledges that if the Company or TRIV does submit the “parachute payments” to a vote of the stockholders and uses reasonable and good faith diligent efforts to secure the approval of the stockholders of such “parachute payments” but the stockholders fail to approve the “parachute payments,” then the Executive agrees to forfeit such benefits and payments under Section 8 of this Agreement that constitute “excess parachute payments” under Code Section 280G(b)(1) that are subject to the Excise Tax.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or of any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal subject to the Excise Tax excise tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section 280G(b)(2) of the Codecode, and all “excise "excess parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that If any payment payments or benefit benefits received or to be received by the Executive in connection with the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of with the Company (Company, or any affiliateperson affiliated with the Company) (collectivelythe "Payments"), the “Payments”) would will be equal subject to the Excise Tax tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") (or any similar tax that may hereafter be imposed), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable payment provided for by the company Executive with respect theretothis Subsection 5(d), shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1a) the total amount of the all Payments shall be treated as “"parachute payments” " within the meaning of section Section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, unless in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company's independent auditors and acceptable to the Executive ("tax counsel"), a Payment such Payments (in whole or in part) does do not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Codepayments, or such “excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (2b) the amount of the Payments that which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A1) the total amount of the Payments or (B2) the amount of “excess parachute payments” payments within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofa), above), and (3c) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company's independent auditors in accordance with the principles of sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the Executive's highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Executive's highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of Executive's residence on the Executive’s residence in Date of Termination (or, if there is no Date of Termination, the calendar year in date on which the Gross-Up Payment Excise Tax is to be madedetermined), net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking . In the event that the Excise Tax is subsequently determined to be less than the amount taken into account any limitations applicable hereunder, the Executive shall repay to individuals subject the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such repayment from the date the Gross-Up Payment was initially made to the date of repayment at the highest marginal ratesrate provided in Section 1274(b)(2)(B) of the Code (the "Applicable Rate"). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross- Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined. Any payment to be made under this paragraph shall be payable within five (5) days of the determination of tax counsel that such a payment is required hereunder and, if applicable, within five (5) days of a final determination that the Excise Tax is greater or less than initially calculated.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or of any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal subject to the Excise Tax excise tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), ") as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “"parachute payments” " within the meaning of section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “"excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In Notwithstanding any ------------------- provision in this Agreement to the event that contrary, if any payment to or for the benefit received of the Employee under this Agreement, either alone or together with other payments to be received by or for the Executive pursuant benefit of the Employee, is subject to the terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “Payments”) would be equal to the Excise Tax (the “Excise Tax”) excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”", such payments referred to hereinafter as "Change of Control Payments" and such tax referred to hereinafter as the "Excise Tax"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an Employee such additional amount (the “"Gross-Up up Payment”") such that as may be necessary to place the net amount retained by Employee in the Executive, after deduction same after-tax position as if no portion of the Excise Tax on payments Change of Control Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal amounts paid to the total Payments. For purposes of determining whether any of the Payments will be subject Employee pursuant to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excise parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as this Section 6.7 had been subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company, a Payment (in whole or in part) does not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Code, or such “excess parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up up Payment, the Executive Employee shall be deemed (i) to pay federal income taxes tax at the highest marginal rates rate of federal income taxation applicable to individuals in for the calendar year in which the Gross-Up up Payment is to be made and (ii) to pay any applicable state and local income taxes at the highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in for the calendar year in which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxestaxes if paid in such year. The amount of the Gross-up Payment shall be determined by the Compensation Committee of the Board of Directors acting reasonably, taking into account promptly and in good faith and shall be paid in cash within ten (10) business days after the determination of such amount, but in any limitations applicable event not later than the business day prior to individuals subject to the date on which the Employee would otherwise pay his federal income tax at taxes for the highest marginal ratesapplicable year in which the Excise Tax is imposed."

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms of this Agreement or of any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “"Payments”") would be equal subject to the Excise Tax excise tax (the “"Excise Tax”") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of the Excise Tax on payments Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total Payments. For purposes of determining whether any of the Payments will be sub subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “64 parachute payments” " within the meaning of section 280G(b)(2) of the Code, and all “excise "excess parachute payments” " within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“"Tax Counsel”") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the "Auditor"), a Payment (in whole or in part) does not constitute a “"parachute payment” " within the meaning of section 280G(b)(2) of the Code, or such “"excess parachute payments” " (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “cc excess parachute payments” " within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that any payment or benefit received or to be received by the Executive pursuant to the terms Terms of this Agreement or any other plan, arrangement or agreement of the Company (or any affiliate) (collectively, the “‘‘Payments”’’) would be equal to the Excise Tax (the “‘‘Excise Tax”’’) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “‘‘Code”’’), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below an additional amount (the “‘‘Gross-Up Payment”’’) such that the net amount retained by the Executive, after deduction of the Excise Tax on payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the company Executive with respect thereto, shall be equal to the total PaymentsTotal payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as “‘‘parachute payments” ’’ within the meaning of section 280G(b)(2) of the Code, and all “‘‘excise parachute payments” ’’ within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of tax counsel (“‘‘Tax Counsel”’’) reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the event giving rise to the Payment, the Company's independent auditor (the ‘‘Auditor’’), a Payment (in whole or in part) does not constitute a “‘‘parachute payment” ’’ within the meaning of section 280G(b)(2) of the Code, or such “‘‘excess parachute payments” ’’ (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “‘‘excess parachute payments” ’’ within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.

Excise Tax Gross-Up. (a) In the event that If any payment payments or benefit benefits received or to be received by the Executive in connection with the Executive’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement of with the Company (Company, or any affiliateperson affiliated with the Company) (collectively, the “Payments”) would ), will be equal subject to the Excise Tax tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any similar tax that may hereafter be imposed), as determined as provided below, the Company shall pay to the Executive, at the time specified in Section 5.7(b) below below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on payments the Payments and any federal, state and local income and employment or other tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable payment provided for by the company Executive with respect theretothis subsection (e), shall be equal to the total Payments; provided that, if a reduction of 10% or less in the value of the Payments would cause the Payments not to be subject to the Excise Tax, the Payments shall be reduced to the maximum amount such that the Excise Tax shall not apply. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts amount of such Excise Tax, (1i) the total amount of the all Payments shall be treated as “parachute payments” within the meaning of section Section 280G(b)(2) of the Code, and all “excise excess parachute payments” within the meaning of section Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, unless in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to Executive and selected by the Company’s independent auditors and acceptable to the Executive (“tax counsel”), a Payment such Payments (in whole or in part) does do not constitute a “parachute payment” within the meaning of section 280G(b)(2) of the Codepayments, or such “excess parachute payments” payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (2ii) the amount of the Payments that which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of “excess parachute payments” payments within the meaning of section Section 280G(b)(1) of the Code (after applying clause (1) hereofi), above), and (3iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Tax Counsel Company’s independent auditors in accordance with the principles of sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the any Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the Executive’s highest marginal rates rate of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Executive’s highest marginal rates rate of taxation applicable to individuals as are in effect in the state and locality of the Executive’s residence in on the calendar year in Date of Termination (or, if there is no Date of Termination, the date on which the Gross-Up Payment Excise Tax is to be madedetermined), net of the maximum reduction in federal income taxes that can which could be obtained from deduction of such state and local taxes, taking . In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of any limitations applicable Gross-Up Payment attributable to individuals subject such reduction (plus the portion of any Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive) plus interest on the amount of such repayment from the date the Gross-Up Payment was initially made to the date of repayment at the highest marginal ratesrate provided in Section 1274(b)(2)(B) of the Code (the “Applicable Rate”); provided that, if it is subsequently determined that the Payments should have been but were not reduced pursuant to the proviso in the first sentence of this subsection (e), the Executive shall repay to the Company the amount of the Gross-Up Payment (plus interest on the amount of such repayment from the date the Gross-Up Payment was initially made to the date of repayment at the Applicable Rate) plus the amount of the Payments that should not have been made on account of such proviso (plus interest on the amount of such repayment from the date the Payments were initially made to the date of repayment at the Applicable Rate). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess at the Applicable Rate) at the time that the amount of such excess is finally determined. Any payment to be made under this paragraph shall be payable within five (5) days of the determination of tax counsel that such a payment is required hereunder and, if applicable, within five (5) days of a final determination that the Excise Tax is greater or less than initially calculated.