Common use of Excise Tax Clause in Contracts

Excise Tax. If it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

Excise Tax. If it is determined In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (by the reasonable computation by an independent accounting whether or consulting firm chosen by the Company not such amounts are payable pursuant to this Agreement) (the “Firm”"Severance Payments"), which determination shall be certified by the Firm and set forth in a certificate delivered if any of such Severance Payments are subject to the Executivetax (the "Excise Tax") that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by federal, state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being that may hereafter collectively referred to as the “Excise Tax”be imposed), then the aggregate Company shall pay to you at the time specified in Section 7 hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the ExecutiveTotal Payments. For the avoidance purposes of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Severance Payments will be subject to reduction or elimination; provided, however, that to the extent that Excise Tax and the Executive’s ability to exercise amount of such authority would cause Excise Tax: (i) any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are received or to be paid the furthest received by you in time from the date connection with a Change in Control or your termination of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive employment (whether pursuant to the preceding sentence shall take precedence over the provisions terms of this Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and entitlements all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(i) hereof); and (iii) the value of any non-cash benefits or compensationany deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall repay to the Company within ten days after 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 you if such repayment results in a 5 5 reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (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) within ten days after the time that the amount of such excess is finally determined.

Excise Tax. If In the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified determined that any payment, benefit, or distribution by the Firm and set forth in a certificate delivered to or for the Executive) that the aggregate amount benefit of the payments, distributions, benefits and entitlements of any type Executive (whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided this paragraph) (a “Payment”) would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, being hereafter are hereinafter collectively referred to as the “Excise Tax”), then the aggregate Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to Section 409A of the Code, the Executive retains an amount of Parachute the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Firm’s obligation to make Gross-Up Payments payable under this paragraph 5 shall not be conditioned upon the Executive’s termination of employment. All determinations required to be made under this paragraph, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Deloitte & Touche LLP or such other certified public accounting firm reasonably acceptable to the Firm as may be designated by the Executive (the “Accounting Firm”), which shall provide detailed supporting calculations both to Lazard and the Executive within fifteen (15) business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by Lazard. All fees and expenses of the Accounting Firm shall be borne solely by the Firm. Any Gross-Up Payment shall be paid by the Firm to the Executive shall not exceed within five days of the amount which produces later of (i) the greatest after-tax benefit to due date for the Executive after taking into account payment of any Excise Tax to be payable by the Executive as determined by the Firm upon discussion withTax, and reasonable approval by, (ii) the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which receipt of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Accounting Firm’s determination. Except as set forth Any determination by the Accounting Firm shall be binding upon the Firm and the Executive. As a result of the uncertainty in the preceding sentence, any notice given application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Firm should have been made (“Underpayment”) or that Gross-Up Payments which were made by the Firm should not have been made (“Overpayment”). In the event that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Firm to or for the benefit of the Executive. In the event that there occurs an Overpayment and the Executive becomes entitled to receive any refund with respect to the Excise Tax, the Executive shall promptly pay to the Firm the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). Any Gross-Up Payment, as determined pursuant to this paragraph 5, shall be paid by the preceding sentence Firm to the Executive within five (5) days of the receipt of the Accounting Firm’s determination; provided that, the Gross-Up Payment shall take precedence over in all events be paid no later than the provisions end of any other plan, arrangement or agreement governing the Executive’s rights taxable year next following the Executive’s taxable year in which the Excise Tax (and entitlements any income or other related taxes or interest or penalties thereon) on a Payment is remitted to the Internal Revenue Service or any benefits other applicable taxing authority or, in the case of amounts relating to a claim from the Internal Revenue Service or compensationanother tax authority that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. Notwithstanding any other provision of this paragraph 5, the Firm may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive hereby consents to such withholding.

Excise Tax. (a) If it is determined any payment or benefit (including, but not by way of limitation, benefits such as accelerated vesting and/or distributions of stock options, dividend equivalents and restricted stock, loan forgiveness, and the continuation of fringe and other benefits) to the Employee hereunder or any other payments received or to be received by the reasonable computation by an independent accounting Employee from any Regency Entity or consulting firm chosen by the Company any successor thereto (the “Firm”)collectively, which determination shall be certified by the Firm "Payments") (whether payable upon termination of employment or otherwise and set forth in a certificate delivered whether payable pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid terms hereof or provided to the Executive under the terms of this Agreement or under any other plan, programagreement or arrangement with any Regency Entity) would, policyin the opinion of Tax Counsel (as defined in Section 5(c)) constitute a "parachute payment" under Section 280G of the Code, or other arrangement, either alone if it is ultimately determined by a court or in combination with other elements pursuant to a final determination by the Internal Revenue Service that any portion of compensation and benefits paid or provided the Payments is subject to the Executive tax (including any paymentthe "Excise Tax") imposed by Section 4999 of the Code, distributionthen, benefit or entitlement made by any person or entity effecting a Change except as provided in Controlthe last sentence of this Section 5(a), the Company shall pay to the Employee within fifteen days after such determination an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee after deduction of (i) any Excise Tax; (ii) any federal, state or local tax arising in each caserespect of imposition of such Excise Tax; (iii) any federal, state or local tax or Excise Tax imposed upon the payment provided for by this Section 5(a); and (iv) any interest charges or penalties arising as a result of filing federal, state or local tax returns in accordance with the opinion of Tax Counsel described in Section 5(c), shall be equal to the Payments. Notwithstanding the foregoing, if the amount of the Payments does not exceed by more than $25,000.00 the amount that could would be considered “payable to the Employee if the Payments were reduced to one dollar less than what would constitute a "parachute payments” within the meaning of payment" under Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”"Scaled Back Amount"), then the aggregate amount of Parachute Payments payable shall be reduced to the Executive Scaled Back Amount, and the Employee shall not exceed be entitled to any Gross-Up Payment. (b) For purposes of this Section 5, the amount Employee shall be deemed to pay federal income taxes at the highest marginal federal tax rates in the calendar year in which produces such payment is made and any state or local income taxes at the greatest after-highest marginal rates applicable in the state and locality of the Employee's domicile for income tax benefit to purposes in the Executive calendar year in which such payment is made hereunder and assuming the maximum available deduction from income for federal income taxes purposes of any such state or local income taxes. (c) For purposes of Section 5(a), within 60 days after taking into account any Excise Tax to be payable delivery of a written notice of termination by the Executive as determined Employee or by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, Company pursuant to this provision will reduce the amount of Parachute Payments otherwise payable to the ExecutiveAgreement (or, if doing so would place the Executive an event other than termination of employment results in a better net after-tax economic position as compared with not doing so (taking into account the payment of parachute payments under Section 280G and it is reasonably possible that such parachute payments could result in an Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any 60 days after such written noticeother event), the Company shall reduce or eliminate obtain, at its expense, the Parachute Payments opinion (which need not be unqualified) of nationally recognized tax counsel ("Tax Counsel") selected by first reducing or eliminating the portion Company's independent auditors, which sets forth (i) the "base amount" within the meaning of Section 280G; (ii) the aggregate present value of the Parachute Payments that are payable payments in cash the nature of compensation to the Employee as prescribed in Section 280G(b)(2)(A)(ii); and then by reducing or eliminating (iii) the amount and present value of any "excess parachute payment" within the meaning of Section 280G(b)(1). For purposes of such opinion, the value of any non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments benefits or benefits which are to any deferred payment or benefit shall be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given determined by the Executive pursuant Company's independent auditors in accordance with the principles of Section 280G and regulations thereunder, which determination shall be evidenced in a certificate of such auditors addressed to the preceding sentence Company and the Employee. Such opinion shall take precedence over be addressed to the provisions of any other plan, arrangement or agreement governing Company and the Executive’s rights Employee and entitlements to any benefits or compensationshall be binding upon the Company and the Employee.

Excise Tax. If it is determined (by Notwithstanding anything to the reasonable computation by an independent accounting or consulting firm chosen by contrary in this Agreement, in the Company event that Employee becomes entitled to severance payments, if any of the severance payments will be subject to the tax (the “FirmExcise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), which determination Zenith shall pay to Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income and other tax and Excise Tax upon the payment provided for herein, shall be certified by the Firm and set forth in a certificate delivered equal to the Executive) that Total Payments. For purposes of determining whether any of the aggregate Total Payments will be subject to the Excise Tax and the amount of the paymentssuch Excise Tax, distributions, (i) any other payments or benefits and entitlements received or to be received by Employee in connection with a Change in Control or Employee’s termination of any type paid or provided employment (whether pursuant to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with Employer, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting whose actions result in a Change in ControlControl or any person affiliated with Employer or such person (which, together with severance payments, shall constitute “Total Payments”)), in each case, that could shall be considered treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Zenith’s independent auditors and acceptable to Employee, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount, within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Zenith’s independent auditors 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, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee’s residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such paymentsstate and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Employee’s employment, Employee shall repay to Zenith, at the time that the amount of such reduction in Excise Tax is finally determined, the “Parachute Payments”) that, but for this Section 10 would be payable portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the ExecutiveExcise Tax and federal, exceeds state and local income tax imposed on the greatest amount of Parachute Payments that could be paid Gross-Up Payment being repaid by Employee to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local lawincome 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 Employee’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), Zenith shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or any interest or penalties additions payable by Employee with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as excess) at the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce time that the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments)excess is finally determined. The Executive Gross-Up Payment shall be permitted to provide to made not later than the Company written notice specifying which fifth day following the date of the Parachute Payments will be subject to reduction or elimination; termination of employment, provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does amounts of such payments cannot provide the Company with any be finally determined on or before such written noticeday, the Company Zenith shall reduce or eliminate the Parachute Payments pay to Employee on such day an estimate, as determined in good faith by first reducing or eliminating the portion Zenith, of the Parachute Payments that are payable minimum amount of such payments to which Employee is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in cash and then by reducing or eliminating the non-cash portion Section 1274(b)(2)(B) of the Parachute Payments, Code) as soon as the amount thereof can be determined but in each case in reverse order beginning with payments or benefits which are to be paid no event later than the furthest in time from thirtieth (30th) day after the date of termination of employment. In the Firm’s determinationevent that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Zenith to Employee, payable on the fifth (5th) business day after demand by Zenith (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). Except as set At the time that payments are made under this Paragraph, Zenith shall provide Employee with a written statement setting forth the manner in which such payments were calculated and the preceding sentencebasis for such calculations including, without limitation, any notice given by the Executive pursuant opinions or other advice Zenith has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationstatement).

Excise Tax. If it is determined The present value (by as defined herein) of the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered liquidated damages payable to the Executive) that the aggregate amount of the paymentsEmployee under Section 3 hereof, distributions, benefits and entitlements of any type paid or provided other payments otherwise payable to the Executive under the terms of this Agreement Employee by Norstan on or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting after a Change in Control), as defined in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), which are deemed under said Section 280G to constitute “parachute payments” (as defined in Section 280G without regard to Section 280G(b)(2)(A)(ii)), shall be less than three times the Employee’s base amount (as defined herein). In the event that the present value of such paymentspayments equals or exceeds such amount, the “Parachute Payments”) that, but for provisions set forth in this Section 10 would be 4 will apply, and liquidated damages or other severance benefits payable to the ExecutiveEmployee under this Agreement will be made only in accordance with this Section 4 notwithstanding any provision to the contrary in this Agreement. (A) Not later than thirty days after the Date of Termination, exceeds the greatest Corporation will provide the Employee with a schedule indicating by category the present value of the liquidated damages payable to the Employee under this Agreement, all other benefits payable to the Employee under this Agreement (specifying the paragraph, subparagraph or clause under which each such payment is to be made) and any other payments otherwise payable to the Employee by Norstan on or after the Change in Control, which, in the Corporation’s opinion, constitute parachute payments under Section 280G of the Code. No payments under this Agreement shall be made until after thirty days from the receipt of such schedule by the Employee. At any time prior to the expiration of said thirty-day period, the Employee shall have the right to select from all or part of any category of payment to be made under this Agreement those payments to be made to the Employee in an amount the present value of Parachute Payments which (when combined with the present value of any other payments otherwise payable to the Employee by Norstan that could are deemed parachute payments) is less than 300 percent of the Employee’s base amount. If the Employee fails to exercise his/her right to make a selection, only a lump sum cash severance payment equal to one dollar less than 300 percent of the Employee’s base amount (reduced by the present value of any other payments otherwise payable to the Employee by Norstan that are deemed parachute payments and increased, to the extent such increase will not cause the payment to be an excess parachute payment under Section 280G of the Code, by interest from the Date of Termination to the date of payment at the Federal short-term rate, compounded annually, promulgated under Section 1274(d) of the Code as effective for the month in which the Date of Termination occurs) shall be made to the Employee on the day after the expiration of the period extending thirty days from his/her receipt of the schedule provided for hereunder, and no other liquidated damages or other benefits under Section 3 of this Agreement shall be paid to the Executive without giving rise Employee. (B) If the Corporation fails to any liability for any excise tax imposed by Section 4999 supply the schedule within thirty days of the Code Date of Termination, then the provisions of this Section 4 shall not apply and Norstan shall be obligated to pay to the Employee the full amount of liquidated damages and other benefits under this Agreement, without regard to this Section 4. (C) If the Employee disagrees with the schedule prepared by the Corporation, then the Employee shall have the right to submit the schedule to arbitration in accordance with the provisions of Section 4(F) herein. The period in which the Employee may select his/her benefits under this Agreement shall be extended until fifteen days after a final and binding arbitration award is issued or a final judgment, order or decree of a court of competent jurisdiction is entered upon such arbitration award (the time for appeal therefrom having expired and no appeal having been perfected), and Norstan’s period for paying the Employee’s unpaid benefits under this Agreement shall be extended until ten days thereafter. If the Employee fails to make a selection within said fifteen day period, Norstan shall pay the unpaid benefits within five days following the expiration of the Employee’s fifteen day period. (D) For purposes of this Section 4, “present value” means the value determined in accordance with the principles of Section 280 of the Code, and the regulations promulgated under Section 280G of the Code, and “base amount” means the annualized includible compensation for the base period payable to the Employee by the Corporation or any subsidiary of the Corporation and includible in the Employee’s gross income for Federal income tax purposes during the shorter of the period consisting of the most recent five taxable years ending before the date of any Change in Control of the Corporation or the portion of such period during which the Employee was an employee of the Corporation or any subsidiary of the Corporation. (E) In the event that Section 280G of the Code, or any successor provision theretostatute, is repealed, this Section 4 shall cease to be effective on the effective date of such repeal. (F) or any similar tax imposed Any controversy regarding the schedule arising out of Section 4(C) shall be settled by state or local lawarbitration before three arbitrators, and judgment rendered by the arbitrators, or a majority of them, may be entered in any interest or penalties with respect court having jurisdiction thereof. Within thirty days after notice by either party to the other requesting such tax (such tax or taxesarbitration, together with any such interest or penaltieseach party shall appoint a disinterested and neutral arbitrator, being hereafter collectively referred to as and the “Excise Tax”)two thus chosen shall appoint a third disinterested and neutral arbitrator. If the two arbitrators so appointed cannot agree upon the appointment of a third arbitrator, then the aggregate amount of Parachute Payments payable to the Executive such third arbitrator shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable appointed by the Executive Chief Judge of the United States District Court for the district that then includes the City of Minneapolis. Such arbitration shall be conducted in the City of Minneapolis in conformity with the procedures provided under the Uniform Arbitration Act, as determined adopted by the Firm upon discussion with, State of Minnesota and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive as then in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determinationeffect. Except as set forth provided in Section 5 of this Agreement, the preceding sentence, parties shall each pay their own expenses in connection with such arbitration and any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationrelated proceedings.

Excise Tax. If it is determined (by i) Notwithstanding anything to the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and contrary set forth in this Agreement, in no event shall a certificate delivered Severance Payment payable pursuant to this Section 3 exceed an amount equal to the Executivelesser of (i) that 2.99 times the aggregate amount "base amount" (as defined in Section 280G(b)(3) of the paymentsInternal Revenue Code of 1986, distributions, benefits and entitlements as amended (the "CODE")) of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policyEmployee's compensation, or (ii) such other arrangement, either alone or amount which would constitute an "excess parachute payment" (as defined in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code Code). In the event that it shall be determined that any Severance Payment to Employee (such payments, the “Parachute Payments”whether paid or payable or distributed or distributable) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (Code, or any successor provision theretothereto (the "EXCISE TAX"), then Employee shall be entitled to receive from Employer an additional payment (the "GROSS-UP PAYMENT") or any similar tax imposed in an amount such that the net amount of the Severance Payment and the Gross-Up Payment retained by state or local law, or Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all Federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Severance Payment. In the event Employer exhausts its remedies pursuant to this Section and Employee is required to make a payment of any Excise Tax, the Gross-Up Payment shall be promptly paid by Employer to or for Employee's benefit. (ii) Employee shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of the Gross-Up Payment. Such notification shall be given as soon as practicable after Employee is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. Employee shall not pay such claim prior to the expiration of the 30-day period following the date on which Employee gives such notice to Employer (or such shorter period ending on the date that any payment of taxes, interest and/or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”claim is due), then the aggregate amount of Parachute Payments payable . If Employer notifies Employee in writing prior to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect expiration of such Parachute Payments). The Executive period that it desires to contest such claim, Employee shall: (A) give Employer any information reasonably requested by Employer relating to such claim; (B) take such action in connection with contesting such claim as Employer shall be permitted reasonably request in writing from time to provide time, including, without limitation, accepting legal representation with respect to the Company written notice specifying which of the Parachute Payments will be subject such claim by an attorney reasonably selected by Employer; (C) cooperate with Employer in good faith in order to reduction or eliminationeffectively contest such claim; and (D) permit Employer to participate in any proceedings relating to such claims; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify Employee for and hold Employee harmless from, on an after-tax basis, any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of all related costs and expenses. Without limiting the foregoing provisions of this section, Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Employee to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; provided, however, that if Employer directs Employee to pay such claim and ▇▇▇ for a refund, Employer shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify Employee for and hold Employee harmless from, on an after-tax basis, any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance (including as a result of any forgiveness by Employer of such advance); provided, further, that any extension of the statute of limitations relating to the extent that payment of taxes for the Executive’s ability taxable year of Employee with respect to exercise which such authority would cause any Parachute Payment contested amount is claimed to become subject be due is limited solely to any Section 409A Taxsuch contested amount. Furthermore, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion Employer's control of the Parachute Payments that are contest shall be limited to issues with respect to which a Gross-Up Payment would be payable in cash hereunder and then by reducing Employee shall be entitled to settle or eliminating contest, as the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentencemay be, any notice given other issue raised by the Executive pursuant to the preceding sentence shall take precedence over the provisions of Internal Revenue Service or any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationtaxing authority.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (by the reasonable computation by an independent accounting or consulting firm chosen otherwise provided or to be provided) to Executive by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount or any of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive its affiliates under the terms of this Agreement or under any other plan, programprogram or arrangement under which Executive participates or is a party, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Controlthan amounts payable under this Section 10(d), in each case(collectively, that could be considered the “Payments”), would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the aggregate amount of Parachute the Payments payable to Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Executive shall not exceed be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(c), including whether and when a Gross-Up Payment or a Reduction is required, the amount which produces of such Gross-Up Payment or Reduction and the greatest after-tax benefit assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(c). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(c), shall be paid by the Company to Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any Excise Tax additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be payable by Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce or the amount of Parachute the Payments otherwise after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(c), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive under this Section 10(c) shall be permitted paid to provide him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment; provided, to the Company written notice specifying which extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the Parachute Payments will payments and benefits payable to Executive under this Section 10(c) shall be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Safe Harbor and Postponement provided at Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation8(c)(iv).

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is shall be determined that any payment, award, benefit or distribution (by including, without limitation, the reasonable computation by an independent accounting acceleration of any payment, award, distribution or consulting firm chosen benefit), by the Company or its subsidiaries to or for the benefit of Executive (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided this Section 17) (a “Payment”) would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, being hereafter are hereinafter collectively referred to as as, the “Excise Tax”), then Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any Excise Tax, income tax or employment tax) imposed upon the aggregate Gross-Up Payment and any interest or penalties imposed with respect to such taxes, Executive retains from the Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 17, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of Parachute Payments payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable under this Agreement would not result in a reduction of the Payments to the Safe Harbor Amount, no amounts payable under this Agreement shall be reduced pursuant to this Section 17(a). (b) Subject to the provisions of Section 17(c), all determinations required to be made under this Section 17, including the determination of whether a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, shall be made by the Company’s independent auditors or such other accounting firm agreed by the parties hereto (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company within 15 business days after the receipt of notice from the Company that Executive has received a Payment, or such earlier time as is requested by the Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 17(b), shall be paid to Executive (or for the benefit of the Executive to the extent of the Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive not to report any Excise Tax on his Federal income tax return and, as a result, the Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 17(b) shall be binding upon the Company and Executive. As a result of the uncertainly in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 17(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not Later than ten business days after Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not exceed pay such claim prior to the amount expiration of the 30-day period following the date on which produces it gives such notice to the greatest Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax benefit to the Executive after taking into account basis, for any Excise Tax to be payable by Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the Executive as determined by the Firm upon discussion with, and reasonable approval byforegoing provisions of this Section 17(c), the Executive. For Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable taxing authority in respect of such Parachute Payments). The claim and may, at its sole option, either direct Executive shall be permitted to provide pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationshall determine; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Company directs Executive does not provide the Company with any to pay such written noticeclaim and ▇▇▇ for a refund, the Company shall reduce advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or eliminate employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Parachute Payments by first reducing or eliminating Company may not direct Executive to pay the portion claim and ▇▇▇ for a refund); and further provided that any extension of the Parachute Payments that are payable in cash and then by reducing or eliminating statute of limitations relating to the non-cash portion payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the Parachute Paymentscontest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in each case in reverse order beginning with payments or benefits which are writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be paid repaid and the furthest in time from amount of such advance shall offset, to the date extent thereof, the amount of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant Gross-Up Payment required to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationbe paid.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (by or otherwise provided or to be provided) to the reasonable computation by an independent accounting or consulting firm chosen Executive by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount or any of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive its affiliates under the terms of this Agreement or under any other plan, programprogram or arrangement under which Executive participates or is a party, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Controlthan amounts payable under this Section 10(d), in each case(collectively, that could be considered the “Payments”), would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (such payments“Code”), the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the aggregate amount of Parachute the Payments payable to the Executive under this Agreement shall not exceed be reduced (a “Reduction”) to the amount which produces the greatest after-tax benefit extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any Excise Tax additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, excess of the Executive. For Recalculated Amount over the avoidance of doubt, this provision will reduce Gross-Up Payment initially paid to the Executive or the amount of Parachute the Payments otherwise payable to after the ExecutiveReduction, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so applicable, within five (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which 5) days of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion receipt of the Parachute Payments that are payable in cash and then by reducing or eliminating Auditor’s recalculation the nonGross-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationUp Payment.

Excise Tax. If it It is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm intention of Premier and set forth in a certificate delivered to the Executive) Executive that the aggregate amount of the payments, distributions, benefits and entitlements no portion of any type paid payment under this Agreement, or provided payments to or for the benefit of Executive under the terms of this Agreement or under any other agreement or plan, program, policybe deemed to be an "Excess Parachute Payment" as defined in Section 280G of the Code, or other arrangementits successors. It is agreed that the present value of and payments to or for the benefit of Executive in the nature of compensation, either alone or in combination with other elements receipt of compensation and benefits paid or provided to which is contingent on the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control)Control of Premier, in each case, that could be considered “parachute payments” within the meaning of and to which Section 280G of the Code applies (in the aggregate "Total Payments") shall not exceed an amount equal to one dollar less than the maximum amount that Premier may pay without loss of deduction under Section 280G(a) of the Code. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code. Within sixty (60) days following the earlier of (i) the giving of the notice of termination or (ii) the giving of notice by Premier to Executive of its belief that there is a payment or benefit due Executive which will result in an excess parachute payment as defined in Section 280G of the Code, Executive and Premier, at Premier's expense, shall obtain the opinion of such legal counsel and certified public accountants as Executive may choose (notwithstanding the fact that such persons have acted or may also be acting as the legal counsel or certified public accountants for Premier), which opinions need not be unqualified, which sets forth: (i) the amount of the Base Period Income of Executive (as defined in Code Section 280G), (ii) the present value of Total Payments; and (iii) the amount and present value of any excess parachute payments. In the event that such opinion determines that there would be an excess parachute payment, the “Parachute Payments”payment hereunder or any other payment determined by such counsel to be includable in Total Payments shall be modified, reduced or eliminated as specified by Executive in writing delivered to Premier within thirty (30) thatdays of his receipt of such opinions or, but for this Section 10 would if Executive fails to so notify Premier, then as Premier shall reasonably determine, so that under the bases of calculation set forth in such opinions there will be payable to no excess parachute payment. In the Executive, exceeds event that the greatest amount provisions of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section Sections 280G and 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubtare repealed without succession, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Section shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction no further force or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationeffect.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the “Severance Payments”) of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments. it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or- upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any successor provision theretoadditional Excise Tax, as the case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments. demands, judgments, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(1)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim ("Tax Claim Notice"). (e) If a Claim is asserted against Employee ("Employee Claim"), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing ("Election Notice") that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer's sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer's request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), ▇▇▇ for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to ▇▇▇ for a refund and Employer shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 7(e) hereof, Employer shall have the right to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to a Final Determination: provided, however, that (i) Employer shall not, without Employee's prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer's control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any similar other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee's expense, to participate in all conferences. meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax imposed claimed (pursuant to an Employee Claim) that has been advanced by state Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or local lawcause to be paid to Employer any refund actually received by, or any interest or penalties actually credited to. Employee with respect to such tax (such tax or taxes, together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such interest or penalties, being hereafter collectively referred to as the “Excise Tax”taxing authority related thereto), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(I) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment. on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i). in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise that are payable to You. The Accounting Firm also will determine the Executive, if doing so would place Net After Tax Amount attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement (with the source of the reduction to be directed by You) and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement (with the source of the reduction to be directed by You). The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or eliminationdistributed to You that should not have been paid or distributed under this Section 18 (“Overpayments”), or that additional amounts should be paid or distributed to You under this Section 18 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any such written noticeof that determination and the amount of that Underpayment will be paid to You promptly by the Company. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If (a) In the event it is shall be determined that any payment, award, benefit or distribution (by the reasonable computation by an independent accounting or consulting firm chosen any acceleration of any payment, award, benefit or distribution) by the Company (or any of its affiliated entities) or any entity which effectuates a change in control (or any of its affiliated entities) to or for the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered benefit of Executive (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other planotherwise) (collectively, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided the “Payments”) would be subject to the Executive (including any payment, distribution, benefit or entitlement made excise tax imposed by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G 4999 of the Code (such payments, the “Parachute PaymentsExcise Tax”), then the Payments shall be reduced (but not below zero) that, but for this Section 10 would be payable to the Executive, exceeds the greatest maximum amount of Parachute Payments that could be paid to the Executive without giving rise to the Excise Tax (the “Safe Harbor Cap”). The reduction of the Payments, if applicable, shall be made by reducing first the payments under Section 6(b)(iii)(B), unless an alternative method of reduction is elected by Executive. (b) All determinations required to be made under this Section 8 shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the change in control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company. Notwithstanding the foregoing, if (i) the Audit Committee of the Board determines that it does not want the Accounting Firm to perform such services because of auditor independence concerns or (ii) the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Board shall appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). If Payments are reduced to the Safe Harbor Cap, the Accounting Firm shall provide a written opinion to Executive that he or she is not required to report any liability Excise Tax on his federal income tax return. All fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne by the Company. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect. The determination by the Accounting Firm shall be binding upon the Company and Executive (except as provided in paragraph (c) below). (c) If it is established pursuant to a final determination of a court or the Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that Payments have been made to, or provided for any excise tax imposed the benefit of, Executive by the Company, which are in excess of the limitations provided in this Section 8 (hereinafter referred to as an “Excess Payment”), such Excess Payment shall be deemed for all purposes to be a loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company on demand, together with interest on the Excess Payment at the applicable federal rate (as defined in Section 1274(d) of the Code) from the date of Executive’s receipt of such Excess Payment until the date of such repayment. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination, it is possible that Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made under this Section 8. In the event that it is determined (i) by the Accounting Firm, the Company (which shall include the position taken by the Company, or any successor provision theretotogether with its consolidated group, on its federal income tax return) or the IRS or (ii) pursuant to a determination by a court, that an Underpayment has occurred, the Company shall pay an amount equal to such Underpayment to Executive within ten (10) days of such determination together with interest on such amount at the applicable federal rate from the date such amount would have been paid to Executive until the date of payment. Executive shall cooperate, to the extent his or her expenses are reimbursed by the Company, with any similar tax imposed reasonable requests by state the Company in connection with any contests or local lawdisputes with the Internal Revenue Service in connection with the Excise Tax or the determination of the Excess Payment. (d) If this Section 8 would result in a reduction of the Payments the Executive would otherwise receive in more than an immaterial amount, or any interest or penalties the Company will use its commercially reasonable best efforts to seek the approval of the Company’s shareholders in the manner provided for in section 280G(b)(5) of the Code and the regulations thereunder with respect to such tax reduced payments or other benefits (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred if the Company is eligible to as the “Excise Tax”do so), then the aggregate amount of Parachute Payments payable so that such payments would not be treated as “parachute payments” for these purposes (and therefore would cease to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationthis Section 8).

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for the Employee’s benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced if, and only to the extent that, such reduction will allow the Employee to receive a greater Net After Tax Amount (as defined below) than he would receive absent such reduction. (b) The Accounting Firm (as defined below) will first determine the amount of any Parachute Payments (as defined below) that are payable to the Executive shall not exceed Employee. The Accounting Firm also will determine the amount which produces the greatest after-tax benefit Net After Tax Amount attributable to the Executive after taking into account any Excise Tax to be payable by Employee’s total Parachute Payments. (c) The Accounting Firm will next determine the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the largest amount of Parachute Payments otherwise payable that may be made to the Executive, if doing so would place Employee without subjecting the Executive in a better net after-tax economic position as compared with not doing so (taking into account Employee to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) The Employee then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments, whichever provides the Employee with the higher Net After Tax Amount. If the Employee will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the Accounting Firm will determine which Payments will be reduced so as to achieve the principle set forth in this Section 15. For purposes of making the calculations required by this Section 15, the Accounting Firm may make reasonable assumptions and approximations and may rely on reasonable, good faith interpretations concerning the application of the Code and other applicable legal authority. The Accounting Firm will notify the Employee and the Company if it determines that the Parachute Payments must be reduced and will send the Employee and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 15, it is possible that amounts will have been paid or distributed to the Employee that should not have been paid or distributed under this Section 15 (“Overpayments”), or that additional amounts should be paid or distributed to the Employee under this Section 15 (“Underpayments”). The Executive shall If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or the Employee, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be permitted to provide treated for all purposes as a debt ab initio that the Employee must repay to the Company written notice specifying which of together with interest at the Parachute Payments will be subject to reduction or eliminationapplicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by the Employee and no amount will be payable by the Employee to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which the Employee is subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify the Employee and the Company with any of that determination and the amount of that Underpayment will be paid to the Employee by the Company promptly (and no later than thirty (30) days) after the final determination of the Underpayment, which is when the Employee’s legally binding right to such written noticeUnderpayment first arises. (f) For purposes of this Section 15, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If it is determined (by a) For purposes of this Subsection 2a(vi), the reasonable computation by an independent accounting following terms shall have the following meanings: (I) Payment shall mean any payment or consulting firm chosen distribution (or acceleration of benefits) by the Company to or for your benefit (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable (or accelerated) pursuant to the Executive under the terms of this Agreement or under otherwise). In addition, Payment shall mean the amount of income deemed to be received by you as a result of the acceleration of the exercisability of any other plan, program, policy, of your options to purchase stock of the Company or other arrangement, either alone the acceleration of the lapse of any restrictions on performance stock or in combination with other elements restricted stock of compensation and benefits paid the Company held by you or provided the acceleration of any payment from any deferral plan of the Company. (II) Excise Tax shall mean the excise tax imposed by Section 4999 of the Code. (b) In the event it shall be determined that the amount of any Payments payable to the Executive (including any you would constitute an “excess parachute payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments,” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute the Payments payable to the Executive you under this Agreement shall not exceed the amount which produces the greatest after-tax benefit be reduced (a “Reduction”) to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance extent necessary so that no portion of doubt, this provision will reduce the amount of Parachute such Payments otherwise payable to you is subject to the ExecutiveExcise Tax, but only if doing so the effect of such Reduction would be to place the Executive you in a better net after-tax economic position than you would have been in had no such Reduction been effected. In the event a Reduction is required, the payments to be reduced will be determined in a manner which has the least economic cost to you and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to you until the Reduction is achieved. (c) All determinations required to be made under this Subsection 2a(vi), including whether and when an Excise Tax or a Reduction is required and the amount of such Excise Tax or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting or actuarial consulting firm that is retained by the Company (the “Firm”) which shall provide detailed supporting calculations both to the Company and to you within fifteen (15) business days of the receipt of notice from you that there has been a Payment, or such earlier time as compared is requested by the Company (collectively, the “Determination”). In no event may the Firm retained by the Company be serving as accountant, auditor or consultant for the individual, entity or group affecting the Change in Control. All fees and expenses of the Firm shall be borne solely by the Company. If the Firm determines that no Excise Tax is payable by you, you may request the Firm to furnish you with not doing so (taking into account a written opinion that failure to report the Excise Tax payable on your applicable federal income tax return would not result in respect the imposition of such Parachute Payments)a negligence or similar penalty. The Executive Determination by the Firm shall be permitted to provide to binding upon the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationyou.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any successor provision theretoadditional Excise Tax, as the case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim ("Tax Claim Notice"). (e) If a Claim is asserted against Employee ("Employee Claim"), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing ("Election Notice") that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer's sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer's request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), ▇▇▇ for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to ▇▇▇ for a refund and Employer shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 7(e) hereof, Employer shall have the right to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to a Final Determination; provided, however, that (i) Employer shall not, without Employee's prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer's control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any similar other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee's expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax imposed claimed (pursuant to an Employee Claim) that has been advanced by state Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or local lawcause to be paid to Employer any refund actually received by, or any interest or penalties actually credited to, Employee with respect to such tax (such tax or taxes, together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such interest or penalties, being hereafter collectively referred to as the “Excise Tax”taxing authority related thereto), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(1) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. If it is determined (by In the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) event that the aggregate amount Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the "nature of the payments, distributions, benefits and entitlements of any type paid or provided compensation" (whether pursuant to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of ownership or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of effective control covered by Section 280G 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), and if such payments, the “Parachute Payments”) that, but for this Section 10 would Company Payments will be payable subject to the Executive, exceeds tax (the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax "Excise Tax") imposed by Section 4999 of the Code (or any successor provision thereto) or and any similar tax that may hereafter be imposed by state or local law, or any interest or penalties with respect taxing authority) the amounts of any Company Payments shall be automatically reduced to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred an amount one dollar less than an amount that would subject the Executive to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that the reduction shall occur only if the reduced Company Payments received by the Executive (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the extent that Executive minus (i) the Executive’s ability Excise Tax payable with respect to exercise such authority would cause any Parachute Payment Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. The Executive may elect which payments and benefits shall be reduced to become subject to any Section 409A Taxaccomplish the foregoing, or but, if the Executive does not provide make such an election, cash payments shall be reduced first. (a) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "parachute payments" in excess of the "base amount" (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the "Accountants") such Company Payments (in whole or in part) either do not constitute "parachute payments," including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount" or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. To the extent permitted under Revenue Procedure 2003-68, the value determination shall be recalculated to the extent it would be beneficial to the Executive, at the request of the Executive. (b) For purposes of making the calculation hereunder, the Executive shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Company Payments are to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence for the calendar year in which the Company Payments are to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such written noticestate and local taxes if paid in such year. (c) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall reduce in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or eliminate associated income taxes, the Parachute Payments by first reducing or eliminating Executive shall permit the portion representative of the Parachute Payments that are payable in cash Company to accompany the Executive, and then by reducing or eliminating the non-cash portion Executive and the Executive's representative shall cooperate with the Company and its representative. (d) The Company shall be responsible for all charges of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by Accountants. (e) The Company and the Executive pursuant shall promptly deliver to the preceding sentence shall take precedence over the provisions each other copies of any other planwritten communications, arrangement or agreement governing and summaries of any verbal communications, with any taxing authority regarding the Executive’s rights and entitlements to any benefits or compensationExcise Tax.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise (as defined below) that are payable to You. The Accounting Firm also will determine the Executive, if doing so would place Net After Tax Amount (as defined below) attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis. The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or distributed to reduction You that should not have been paid or eliminationdistributed under this Section 18 (“Overpayments”), or that additional amounts should be paid or distributed to You under this Section 18 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any of that determination and the amount of that Underpayment will be paid to You by the Company promptly (and no later than thirty (30) days) after the final determination of the Underpayment, which is when Your legally binding right to such written noticeUnderpayment first arises. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If it is determined (by In the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth event you become entitled to any amounts payable in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination connection with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in ControlControl (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), in each case, that could be considered “parachute payments” within the meaning if any of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable Severance Payments are subject to the Executive, exceeds tax (the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax "Excise Tax") imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by federal, state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being that may hereafter collectively referred to as the “Excise Tax”be imposed), then the aggregate Company shall pay to you at the time specified in Section 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 3(c), shall be equal to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the ExecutiveTotal Payments. For the avoidance purposes of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Severance Payments will be subject to reduction or elimination; provided, however, that to the extent that Excise Tax and the Executive’s ability to exercise amount of such authority would cause Excise Tax: (i) any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are received or to be paid the furthest received by you in time from the date connection with a Change in Control or your termination of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive employment (whether pursuant to the preceding sentence shall take precedence over the provisions terms of this Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and entitlements all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and (iii) the value of any non-cash benefits or compensationany deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company within ten days after 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 you if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your 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 within ten days after the time that the amount of such excess is finally determined.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the, payments and benefits provided in Section 1 (the “Severance Payments”) of these Special Severance Provisions, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 3 of these Special Severance Provisions, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement and these Special Severance Provisions or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payment” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 28OG(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. If it is determined (In the event that the Executive shall become entitled to payments and/or benefits provided by the reasonable computation by an independent accounting this Agreement or consulting firm chosen by the Company (any other amounts in the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered nature of compensation” (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person) as a result of a Change of Control (collectively the “Company Payments”), or other arrangementand if such Company Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority) the amounts of any Company Payments shall be automatically reduced to an amount one dollar less than an amount that would subject the Executive to the Excise Tax; provided, either alone or in combination with other elements of compensation and benefits paid or provided to however, that the reduction shall occur only if the reduced Company Payments received by the Executive (including after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the Executive minus (i) the Excise Tax payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. The Executive may elect which payments and benefits shall be reduced to accomplish the foregoing, but, if the Executive does not make such an election, cash payments shall be reduced first. (a) For purposes of determining whether any paymentof the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could (x) the Company Payments shall be considered treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the “base amount” or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code (such paymentsCode. To the extent permitted under Revenue Procedure 2003-68, the “Parachute Payments”) that, but for this Section 10 value determination shall be recalculated to the extent it would be payable beneficial to the Executive, exceeds at the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 request of the Code Executive. (or any successor provision theretob) or any similar tax imposed by state or local lawFor purposes of making the calculation hereunder, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed be deemed to pay U.S. federal income taxes at the amount highest marginal rate of U.S. federal income taxation in the calendar year in which produces the greatest after-tax benefit Company Payments are to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence for the calendar year in which the Company Payments are to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. (c) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive after taking into account any shall permit the Company to control issues related to the Excise Tax to be payable by the Executive as determined by the Firm upon discussion with(at its expense), and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to provided that such issues do not potentially materially adversely affect the Executive, if doing so would place but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in a better net after-tax economic position good faith cooperate so as compared not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with not doing so (taking into account regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax payable in respect of such Parachute Payments). The or associated income taxes, the Executive shall be permitted to provide to permit the representative of the Company written notice specifying which of to accompany the Parachute Payments will be subject to reduction or elimination; providedExecutive, however, that to and the extent that Executive and the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if representative shall cooperate with the Company and its representative. (d) The Company shall be responsible for all charges of the Accountants. (e) The Company and the Executive does not provide the Company shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any such written notice, taxing authority regarding the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationExcise Tax.

Excise Tax. If it is determined In the event you become entitled to any amounts payable in connection with a change in control (by the reasonable computation by an independent accounting whether or consulting firm chosen by the Company not such amounts are payable pursuant to this Agreement) (the “Firm”"Severance Payments"), which determination shall be certified by the Firm and set forth in a certificate delivered if any of such Severance Payments are subject to the Executivetax (the "Excise Tax") that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by federal, state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being that may hereafter collectively referred to as the “Excise Tax”be imposed), then the aggregate Company shall pay to you at the time specified in Section 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 3(c), shall be equal to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the ExecutiveTotal Payments. For the avoidance purposes of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Severance Payments will be subject to reduction or elimination; provided, however, that to the extent that Excise Tax and the Executive’s ability to exercise amount of such authority would cause Excise Tax: (i) any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are received or to be paid the furthest received by you in time from the date connection with a Change in Control or your termination of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive employment (whether pursuant to the preceding sentence shall take precedence over the provisions terms of this Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and entitlements all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and (iii) the value of any non-cash benefits or compensationany deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company within ten days after 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 you if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your 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 within ten days after the time that the amount of such excess is finally determined.

Excise Tax. If it is determined (by In the reasonable computation by an independent accounting or consulting firm chosen by event that Employee becomes entitled to a Change of Control Payment, then, if any of the Company Change of Control Payment will be subject to the tax (the “FirmExcise Tax”) imposed by Section 4999 of the Code, Employer shall pay to Employee promptly following determination of the estimated amount due, subject to any adjustments when the final determination is made that the Excise Tax is due, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee, after deduction of Excise Tax on the Change of Control Payment and any federal, state and local income tax upon the payment provided for by this Section 7(f), which determination shall be certified by the Firm and set forth in a certificate delivered equal to the Executive) that the aggregate Change of Control Payment. In no event will any amount of the payments, distributions, benefits and entitlements Gross-Up Payment be paid later than the end of the calendar year next following the year in which the related taxes are remitted. For purposes of determining whether any type paid or provided payment will be subject to the Executive under Excise Tax and the amount of such Excise Tax: (i) any other payments or benefits received or to be received by Employee in connection with the Change of Control of Employer or the termination of Employee’s employment (whether pursuant to the terms of this Agreement or under any other plan, programarrangement or agreement with Employer, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting whose actions result in a Change in Control), in each case, that could of Control or any person affiliated with Employer or such person) shall be considered treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code, and “excess parachute payments” within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Employer and acceptable to Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code; (ii) the amount of Change of Control Payment which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Change of Control Payment or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) and (4) after applying clause (i) above; and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Employer’s independent auditors 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, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation 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 in the state and locality that imposes such tax on the date of termination of Employee’s employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account under this Agreement at the time of the termination of Employee’s employment, Employee shall repay to Employer the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code (such payments, at the “Parachute Payments”) that, but for this Section 10 would be payable to time the Executive, exceeds the greatest amount of Parachute Payments such reduction in Excise Tax is finally determined. In the event that could be paid the Excise Tax is determined to exceed the Executive without giving rise to any liability for any excise tax imposed by Section 4999 amount taken into account under this Agreement at the time of the Code termination of Employee’s employment (including by reason of any payment the existence or any successor provision thereto) or any similar tax imposed by state or local lawamount of which cannot be determined at the time of the Gross-Up Payment), or Employer shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive excess) after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to such excess is finally determined but in no event later than the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which end of the Parachute Payments will be subject to reduction or elimination; provided, however, that to calendar year next following the extent that year in which the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that related taxes are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationremitted.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 1 (the “Severance Payments”) of these Special Severance Provisions, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 3 of these Special Severance Provisions, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement and these Special Severance Provisions or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of Section 280G section 280G(b)(2) of the Code, and all “excess parachute payment” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s’ independent auditors and reasonably acceptable to the Employee such other payments or benefits (such in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “Parachute Payments”) thatbase amount” allocable to such reasonable compensation, but for this Section 10 would be payable or are otherwise not subject to the ExecutiveExcise Tax, exceeds (ii) the greatest amount of Parachute the Severance Payments that could which shall be paid treated as subject to the Executive without giving rise Excise Tax shall be equal to any liability for any excise tax imposed by Section 4999 the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) of, the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a "Payment"), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “"Excise Tax”"), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise that are payable to You. The Accounting Firm also will determine the Executive, if doing so would place Net After Tax Amount attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the "Capped Payments"). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement (with the source of the reduction to be directed by You) and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement (with the source of the reduction to be directed by You). The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or eliminationdistributed to You that should not have been paid or distributed under this Section 18 ("Overpayments"), or that additional amounts should be paid or distributed to You under this Section 18 ("Underpayments"). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any such written noticeof that determination and the amount of that Underpayment will be paid to You promptly by the Company. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If it is determined (by In the reasonable computation by an independent accounting event that the Termination Payment or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered any ---------- other amounts payable to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid his designated beneficiary or provided to the Executive his dependents under the terms of this Agreement or under any plan, program or policy of the Company, or any benefits provided to Executive or his dependents under this Agreement or under any option or other plan, programprogram or policy of the Company, policyshould become subject to the excise tax imposed under Section 4999 of the Internal Revenue Code or any similar tax or assessment (collectively, "Excise Taxes"), the Company shall pay to the Executive, his designated beneficiary 17 or his dependents, as the case may be, on demand, the amount (the "Excise Tax Reimbursement Amount"), necessary fully to reimburse the Executive, his designated beneficiary or his dependents for (i) all Excise Taxes that may be imposed on the Executive, his designated beneficiary or his dependents and (ii) any and all income and other taxes, including additional Excise Taxes, that may be imposed on the Executive, his designated beneficiary or his dependents in respect of any of the amounts to be paid to the Executive, his designated beneficiary or his dependents under clause (i) above or under this clause (ii). The determination of the Excise Tax Reimbursement Amount shall initially be made by the accounting firm that is serving as the Company's independent public accountants immediately prior to the date of termination of the Executive's employment, or, if such accounting firm is no longer in existence, by its successor. All costs and expenses of such accounting firm in connection with making such determination shall be paid by the Company. If it is subsequently determined (as a result of an assessment of additional Excise Taxes by the Internal Revenue Service or otherwise) that the Excise Tax Reimbursement Amount is not sufficient fully to reimburse the Executive, his designated beneficiary or his dependents as contemplated above, the Company shall pay to the Executive, his designated beneficiary or his dependents, as the case may be, on demand, the amount (the "Additional Excise Tax Reimbursement Amount") necessary fully to reimburse the Executive, his designated beneficiary or his dependents for (i) any and all additional Excise Taxes, income taxes and other taxes that may be imposed on the Executive, his designated beneficiary or his dependents, (ii) any and all interest, fines and penalties that may be imposed on the Executive, his designated beneficiary or his dependents in connection with any such additional Excise Taxes, income taxes or other arrangementtaxes, either alone and (iii) any and all income and other taxes, including additional Excise Taxes, that may be imposed on the Executive, his designated beneficiary or his dependents in combination with other elements respect of compensation and benefits any of the amounts to be paid to Executive, his designated beneficiary or provided his dependents under clause (i) or (ii) above or under this clause (iii). If it is subsequently determined that the Executive has received a sum greater than necessary to pay any such Excise Taxes, the Executive shall promptly return such overage to the Executive (including any paymentCompany. The purpose of this paragraph 10 is to place the Executive, distribution, benefit or entitlement made by any person or entity effecting a Change his designated beneficiary and his dependents in Control), the same position on an after-tax basis that each of them would have been in each case, that could be considered “parachute payments” within if the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be Termination Payment and all other amounts payable to the Executive, exceeds his designated beneficiary or his dependents under this Agreement or under any plan, program or policy of the greatest amount of Parachute Payments that could be paid Company, and all benefits provided to the Executive without giving rise to or his dependents under this Agreement or under any liability for any excise tax imposed by Section 4999 plan, program or policy of the Code (or any successor provision thereto) or any similar tax imposed by state or local lawCompany, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall had not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become been subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationExcise Taxes.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise (as defined below) that are payable to You. The Accounting Firm also will determine the Executive, if doing so would place Net After Tax Amount (as defined below) attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis. The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or distributed to reduction You that should not have been paid or eliminationdistributed under this Section 18 (“Overpayments”), or that additional amounts should be paid or distributed to You under this Section 18 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any such written noticeof that determination and the amount of that Underpayment will be paid to You promptly (and no later than thirty (30) days after the final determination of the Underpayment) by the Company. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If it is determined (by In the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) event that the aggregate amount of the paymentsExecutive becomes entitled to Severance Benefits or any other payment or benefit under this Agreement, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policyagreement with, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G plan of the Code Company (such paymentsin the aggregate, the “Parachute Total Payments”) that), but for this Section 10 would if any of the Total Payments will be payable subject to the Executive, exceeds tax (the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax “Excise Tax”) imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being that may hereafter collectively referred to as the “Excise Tax”be imposed), then the aggregate amount of Parachute Payments payable to the Executive Company shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable pay to the Executive, if doing so would place in cash, an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive in a better net after-tax economic position as compared with not doing so (taking into account the after deduction of any Excise Tax payable in respect of such Parachute Paymentsupon the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 8.5 (including FICA and FUTA). The Executive , shall be permitted to provide equal to the Total Payments. Such payment shall be made by the Company written notice specifying which to the Executive as soon as practical following the Effective Date of Termination, but in no event beyond thirty (30) days from such date. (a) For purposes of determining whether any of the Parachute Total Payments will be subject to reduction the Excise Tax and the amounts of such Excise Tax: (1) Any payments or elimination; provided, however, that benefits received or to be received by the extent that Executive in connection with a Change in Control or the Executive’s ability termination of employment (whether pursuant to exercise the terms of this Agreement or any other plan, arrangement, or agreement with the Company, or with any person (which shall have the meaning set forth in Section 3(a)(9) of the Securities Exchange Act, including a “group” as defined in Section 13(d) therein) whose actions result in a Change in Control or any person affiliated with the Company or such authority would cause any Parachute Payment to become persons) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be treated as subject to any Section 409A the Excise Tax, unless in the opinion of tax counsel as supported by the Company’s independent auditors and reasonably acceptable to the Executive, such other payments or if benefits (in whole or in part) do not constitute parachute payments, or unless such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (2) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of: (i) the total amount of the Total Payments; or (ii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (a) above); and (3) The value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. (b) For purposes of determining the amount of the Gross-Up Payment, the Executive does not provide shall be deemed to pay federal income taxes at the Company with any highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the Effective Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such written noticestate and local taxes. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation herein described, the Company shall reduce or eliminate reimburse the Parachute Payments by first reducing or eliminating Executive for the portion of full amount necessary to make the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, Executive whole (less any notice given amounts received by the Executive pursuant that he would not have received had the computation initially been computed as subsequently adjusted), including the value of benefits that were erroneously limited, the value of any overpaid excise tax, and any related interest and/or penalties due to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationInternal Revenue Service.

Excise Tax. If (i) Anything in this Agreement to the contrary notwithstanding, in the event that it is shall be determined that any payment (by including any of the reasonable computation by an independent accounting Tax Gross-Up Payments as defined below in this Section 9(d)) or consulting firm chosen benefit (including any accelerated vesting of options or other equity awards) made or provided, or to be made or provided, by the Company or the REIT (or any successor thereto or affiliate thereof) to or for the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to benefit of the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided whether pursuant to the Executive under the terms of this Agreement or under Agreement, any other agreement, plan, programprogram or arrangement of or with the Company or the REIT (or any successor thereto or affiliate thereof) or otherwise (a “Total Payment”), policywill be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or other arrangementany comparable tax imposed by any replacement or successor provision of United States tax law (the “Excise Tax”), either alone or in combination with other elements of compensation and benefits paid or provided then the Company shall pay to the Executive one or more additional cash payments (the “Tax Gross-Up Payments”) in such amounts so that the net cash amount retained by the Executive, after deduction or payment of (A) the Excise Tax imposed on the Total Payments (including the Excise Tax imposed on the Tax Gross-Up Payments) and (B) all federal, state and local income and employment taxes imposed upon the Tax Gross-Up Payments, shall equal the excess of the Total Payments over the Tax Gross-Up Payments (it being understood that this is a circular definition that requires a reiterative calculation). (ii) One or more determinations (each a “Tax Determination”) as to (A) whether any paymentof the Total Payments will be subject to the Excise Tax, distribution(B) the amount of the Excise Tax imposed thereon, benefit or entitlement and (C) the calculation of the related Tax Gross-Up Payment shall be made by the Company in consultation with such accounting and tax professionals as the Company considers necessary (with all costs related thereto paid by the Company). For purposes of determining whether any person or entity effecting a Change in Control)of the Total Payments will be subject to the Excise Tax, in each case, that could (1) all of the Total Payments shall be considered treated as “parachute payments” (within the meaning of Section 280G of the Code Code) unless and to the extent that, in the written opinion of independent tax counsel selected (such and paid for) by the Company and reasonably acceptable to the Executive (“Tax Counsel”), certain Payments do not constitute parachute payments, and (2) all “excess parachute payments” (within the “Parachute Payments”meaning of Section 280G of the Code) shall be treated as subject to the Excise Tax unless and only to the extent that, in the written opinion of Tax Counsel (upon which the Executive may rely), such excess parachute payments are not subject to the Excise Tax. For purposes of determining the amount of any Tax Gross-Up Payment, the Executive shall be deemed to pay (x) federal income tax at the highest marginal rate in effect for the calendar year during which such Tax Gross-Up Payment is to be made, (y) FICA taxes at the highest rate applicable to wages in excess of the Social Security taxable wage base in effect for such calendar year, and (z) state and local income taxes at the highest marginal rates in effect for such calendar year in the state and local municipality of the Executive’s principal residence as of the date of termination or the date that any portion of the Total Payment becomes subject to the Excise Tax, net of the reduction in federal income tax attributable to the deduction of such state and local income taxes, and taking into account any limitation on deductions or credits or comparable negative impact for purposes of federal income tax as a result of the Total Payments made to the Executive during such calendar year. (iii) An initial Tax Gross-Up Payment shall be made to the Executive on the date that the Change of Control Severance Payment is made, and within ten (10) days after each date that any portion of any Total Payment becomes subject to the Excise Tax (each such date is referred to as a “Payment Date”); provided that if the amount thereof cannot be fully determined by the Payment Date, the Company shall pay to the Executive by the Payment Date an estimate of such payment, determined by the Company reasonably and in good faith, and the Company shall pay to the Executive the remainder of such payment (if any) as soon as the amount thereof can be determined but for this Section 10 would be payable in no event later than twenty (20) days after the Payment Date. Whenever any Tax Gross-Up Payment (or estimate thereof) is made to the Executive, exceeds the greatest amount of Parachute Payments that could be paid Company shall provide to the Executive the Company’s Tax Determination related to such payment, together with detailed supporting calculations and explanations and, if applicable, opinions of Tax Counsel. The Executive shall have the right to dispute any Tax Determination (a “Tax Dispute”) by so notifying the Company within fifteen (15) days after receiving such Tax Determination and the required supporting documentation. Each Tax Determination shall become final and binding upon the parties (A) if there is no Tax Dispute, at the end of such fifteen (15) day period, without giving rise change, or (B) if there is a Tax Dispute, upon final resolution of such Tax Dispute, with such changes as may result from such Tax Dispute. Other than the initial or an estimated Tax Gross-Up Payment as provided for above, any Tax Gross-Up Payment due from the Company to the Executive shall be paid within five (5) days after the related Tax Determination becomes final and binding, provided that, in the event of a Tax Dispute, any liability for any excise tax imposed by Section 4999 undisputed portion of the Tax Gross-Up Payment shall be paid within five (5) days after the Executive notifies the Company of the Tax Dispute. (iv) The parties acknowledge that, as a result of potential uncertainties in the application of the provisions of the Code dealing with the Excise Tax, it is possible that Tax Gross-Up Payments should have been made by the Company but were not (an “Underpayment”) or that Tax Gross-Up Payments made by the Company should not have been made (an “Overpayment”). In either such event, the Company shall make a Tax Determination of the amount of the Underpayment or Overpayment that has occurred, and the Executive shall have the right to initiate a Tax Dispute related thereto. In the case of an Underpayment, the amount of such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of amended returns and claims for refunds), follow the Company’s reasonable instructions and otherwise reasonably cooperate with the Company to correct such Overpayment. (v) Notwithstanding anything to the contrary in this Section 9(d), in the event that the Total Payment may be structured or allocated in such a manner so as to minimize or eliminate the Excise Tax and, therefore, the Tax Gross-up Payments without reducing the value of the Total Payment that the Executive is entitled to receive, the Executive agrees to provide such assistance as is reasonabley necessary so that the Company (or any successor provision thereto) can eliminate or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net afterTax Gross-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute up Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the distributions or benefits being individually referred to herein as a “Parachute Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) that), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (excise tax, and any interest in respect of such penalties, additions to tax or taxes, together with any such interest or penaltiesadditional amounts, being hereafter collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in Section 8(i)) imposed upon the aggregate Gross-Up Payment, Employee retains an amount of Parachute Payments payable such Gross-Up Payment equal to the Executive Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 8(c) through (i), any determination (individually, a “Determination”) required to be made under this Section 8(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer’s expense, by nationally recognized tax counsel selected by Employer (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within fifteen (15) business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”). The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer’s expense, be paid by Employer to or for the benefit of Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not exceed in any way affect Employee’s right to receive the amount which produces the greatest afterGross-tax benefit Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the Executive after taking into account provisions of Section 8(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made (“Underpayment”), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at Employer’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax to be payable by or any additional Excise Tax, as the Executive as determined by the Firm upon discussion withcase may be, and reasonable approval byTax Counsel shall, the Executive. For the avoidance of doubtat Employer’s expense, this provision will reduce determine the amount of Parachute Payments otherwise payable the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgments, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 8(h)) that any Payment is subject to the ExecutiveExcise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if doing so would place pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 8 (“Claim”), including, but not limited to, a claim for indemnification of Employee by Employer under Section 8(c), then such party shall promptly notify the Executive other party hereto in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect writing of such Parachute PaymentsClaim (“Tax Claim Notice”). The Executive . (e) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be permitted solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney. (f) Employer shall have the right to provide defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationa Final Determination; provided, however, that (i) Employer shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer’s control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) In the case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the extent terms of this Section 8(g), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the Executive’s ability costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to exercise Employee, within ten calendar days after such authority would cause Final Determination. In the case of any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does Employee Claim not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments covered by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 8(g), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 8(g)) shall be made within the time and in the manner otherwise provided in this Section 8(g). (h) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 1 (the “Severance Payments”) of these Special Severance Provisions, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 3 of these Special Severance Provisions, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement and these Special Severance Provisions or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the “Severance Payments”) of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payment” within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise (as defined below), that are payable to You. The Accounting Firm also will determine the ExecutiveNet After Tax Amount (as defined below), if doing so would place attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis. The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or distributed to reduction You that should not have been paid or eliminationdistributed under this Section 18 (“Overpayments”), or that additional amounts should be paid or distributed to You under this Section 18 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any such written noticeof that determination and the amount of that Underpayment will be paid to You promptly (and no later than thirty (30) days after the final determination of the Underpayment) by the Company. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion withexcise tax, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable any interest in respect of such Parachute Paymentspenalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"). The Executive , then Employee shall be permitted entitled to provide receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Company written notice specifying which of Excise Tax imposed upon the Parachute Payments will be subject Payments. (b) Subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other plan, arrangement time or agreement governing the Executive’s rights and entitlements to any benefits or compensation.times as is reasonably requested by

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion withexcise tax, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable any interest in respect of such Parachute penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. The Executive Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be permitted to provide binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the Company written notice specifying which provisions of Section 7(c) through (i) below. As a result of the Parachute uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgments, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to reduction the Excise Tax. (d) If a party hereto receives any written or eliminationoral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim ("Tax Claim Notice"). (e) If a Claim is asserted against Employee ("Employee Claim"), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney. (f) Employer shall have the right to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to a Final Determination; provided, however, that (i) Employer shall not, without Employee's prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer's control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee's expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) In the case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the extent terms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the Executive’s ability costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to exercise Employee, within ten calendar days after such authority would cause Final Determination. In the case of any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does Employee Claim not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments covered by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(g), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(g)) shall be made within the time and in the manner otherwise provided in this Section 7(g). (h) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. If it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s 's ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s 's determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s 's rights and entitlements to any benefits or compensation.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the "Severance Payments") of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Company Employee in connection with a change in ownership or control (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section section 280G of the Code (such payments, and the “Parachute Payments”regulations promulgated thereunder) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (Company or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount Employee's termination of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable employment by the Executive as determined Company without Cause or by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so Employee for Good Reason (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive whether pursuant to the preceding sentence shall take precedence over terms of the provisions of Employment Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any person whose actions result in a change of control or any person affiliated with the Company or such person) shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and entitlements all "excess parachute payment" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's' (1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or compensationany deferred payment or benefit shall be determined by the Company's independent auditors 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 Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state and local taxes.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the “Severance Payments”) of this Addendum to the Agreement, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement the Agreement, or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable the Gross-Up Payment, the Employee shall be deemed to pay Federal income taxes at the Executivehighest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee’s residence on the date of termination, if doing so would place net of the Executive maximum reduction in a better net after-tax economic position as compared with not doing so (taking into account Federal income taxes which could be obtained from the Excise Tax payable in respect deduction of such Parachute Payments)state and local taxes. The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Any Gross-Up Payments will be subject to reduction or elimination; provided, however, that to made by the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion end of the Parachute Payments that are payable Employee’s taxable year next following the Employee’s taxable year in cash and then by reducing or eliminating which the non-cash portion of Employee remits the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationrelated taxes.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the "Severance Payments") of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the "Excise Tax") imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Company Employee in connection with a change in ownership or control (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section section 280G of the Code (such payments, and the “Parachute Payments”regulations promulgated thereunder) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (Company or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount Employee's termination of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable employment by the Executive as determined Company without Cause or by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so Employee for Good Reason (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive whether pursuant to the preceding sentence shall take precedence over terms of the provisions of Employment Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any person whose actions result in a change of control or any person affiliated with the Company or such person) shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and entitlements all "excess parachute payment" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's' independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the "base amount" allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b) (1) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or compensationany deferred payment or benefit shall be determined by the Company's independent auditors 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 Employee shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state and local taxes.

Excise Tax. If it is determined 6.1 This Section 6 shall apply in the event that the Employee becomes entitled (by without regard to this Section 6) to one or more payments or rights (which payments or rights shall include, without limitation, the reasonable computation by vesting of an independent accounting option or consulting firm chosen by the Company (the “Firm”other non-cash benefit or property), which determination shall be certified by the Firm and set forth in a certificate delivered whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policyarrangement, or other arrangement, either alone agreement with the Company or in combination with other elements of compensation and benefits paid or provided to the Executive any affiliated company (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such paymentscollectively, the “Parachute Total Payments”) that, but for this Section 10 which would be payable subject (in whole or in part) to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax as may hereafter be imposed) (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”). 6.2 In the event that the Total Payments cause the Employee’s “parachute payments” within the meaning of Section 280G(h)(2) of the Code (the “Parachute Payments”) to equal or to exceed three times the Employee’s “base amount” within the meaning of Section 280G(b)(3) of the Code (the “Trebled Base Amount”) by an amount which is not greater than ten-percent (10%) of the Trebled Base Amount, then the aggregate amount Total Payments shall be reduced (or eliminated) such that no portion of the Total Payments is subject to the Excise Tax. Reductions shall be made first to those Total Payments arising under the terms of this Agreement. 6.3 In the event that the Total Payment cause the Parachute Payments payable to exceed one-hundred-ten-percent (110%) of the Trebled Base Amount, the Company shall pay to the Executive Employee at the time specified below, an additional amount determined as set forth below (the “Gross-up Payment”). The Gross-up Payment shall not exceed be made only with respect to the amount which produces equals fifty-percent (50%) of the greatest after-tax benefit Employee’s “excess parachute payments” subject to the Executive after taking into account any Excise Tax to be payable by (the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive“Subject Amount”). For the avoidance of doubt, this provision will reduce no Gross-up Payment shall be made with respect to the remaining fifty-percent (50%) of the amount of Parachute Payments otherwise payable described in the preceding sentence. The Gross-up Payment shall be an amount such that the net amount retained by Employee with respect to the ExecutiveSubject Amount after reduction for any Excise Tax on the Subject Amount and any federal, if doing so would place the Executive in a better net after-state and local income or employment tax economic position as compared with not doing so (taking into account the and Excise Tax payable in respect of by the Employee on the Gross-up Payment hereunder (provided that such Parachute Payments). The Executive amount is actually paid when due) shall be permitted to provide equal to the Company written notice specifying which Subject Amount. 6.4 For purposes of determining whether any of the Parachute Total Payments will be subject to the Excise Tax, the amount of any Excise Tax and the amount of any Gross-up Payment: (a) The Total Payments shall be treated as Parachute Payments and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except that to the extent that, in the written opinion of independent legal counsel, compensation consultants or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Employee, the Total Payments (in whole or in part) do not constitute Parachute Payments, of such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise tax; (b) The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Total Payments, and (ii) the total amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying Section 6.4(a) above); and (c) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder al the time the Gross-up Payment is made, Employee 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 Employee or eliminationotherwise realized as a benefit by Employee) the portion of the Gross-up payment that would not have been paid if such Excise Tax had been utilized in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (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 (i) shall make an additional Gross-up Payment to Employee at the time that the amount of such excess if finally determined and (ii) shall indemnify and hold Employee harmless from any and all liabilities arising as a direct result of such excess (plus any interest and penalties payable with respect to such excess). The Gross-up Payment provided for above shall be paid in full thirty (30) days (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after it has been determined that the Total Payments (or any other portion thereof) are subject to the Excise Tax; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does amount of such Gross-up Payment or portion thereof cannot provide the Company with any be finally determined on or before such written noticeday, the Company shall reduce or eliminate pay to Employee on such day an estimate, as determined by the Parachute Payments by first reducing or eliminating the portion Independent Advisors, of the Parachute Payments that are payable minimum amount of such Gross-up Payment and shall pay the remainder of such payment (together with interest at the rate provided in cash and then by reducing or eliminating the non-cash portion Section 1274(b)(2)(B) of the Parachute PaymentsCode), as soon as the amount thereof can be determined. In the event that the amount of the estimated Gross-up Payment exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Employee, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. Employee shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment (the “Claim”). Such notification shall be given as soon as practicable but no later than ten (10) business days after Employee is informed in writing of the Claim and shall apprise the Company of the nature of the Claim and the date on which such Claim is requested to be paid. Employee shall not pay such Claim prior to the expiration of the thirty (30) day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such Claim is due). If the Company notifies Employee in writing prior to the expiration of such period that it desires to contest such Claim, Employee shall: (i) give the Company any information reasonably requested by the Company relating to such Claim; (ii) take such action in connection with contesting the Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such Claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order effectively to contest the Claim; and (iv) permit the Company to participate in any proceedings relating to the Claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Employee harmless, on all after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 6, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of the Claim and may, at its sole option, either direct Employee to pay the Excise Tax claimed and ▇▇▇ for a refund or contest the Claim in any permissible manner, and Employee agrees to prosecute such contest to a final determination before any administrative tribunal, in each case a court of initial jurisdiction and in reverse order beginning with payments one or benefits which are more appellate courts, as the Company shall determine; provided, however, that if the Company directs Employee to pay any Excise Tax claimed to be paid due and ▇▇▇ for a refund, the furthest in time Company shall advance the amount of such payment to Employee, on an interest-free basis, and shall indemnify and hold Employee harmless, on an after-tax basis, from the date any Excise Tax or income or employment tax (including income or employment tax or interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the Firmstatute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s determination. Except control of the contest of the Claim shall be limited, to the extent possible, to issues with respect to which a Gross-up Payment would be payable hereunder and the Employee shall be entitled, to the extent possible, to settle or contest, as set forth in the preceding sentencecase may be, any notice given other issue raised by the Executive Internal Revenue Service or any other taxing authority. If, after the receipt by Employee of an amount advanced by the Company pursuant to this Section 6, Employee becomes entitled to receive any refund with respect to such Claim, Employee shall (subject to the preceding sentence Company’s complying with the requirements of this Section 6) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Employee of an amount advanced by the Company pursuant to this Section 6, a final determination is made that Employee shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements not be entitled to any benefits or compensationrefund with respect to such Claim and the Company does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-up Payment required to be paid.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any successor provision theretoadditional Excise Tax, as the case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim ("Tax Claim Notice"). (e) If a Claim is asserted against Employee ("Employee Claim"), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing ("Election Notice") that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer's sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer's request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), sue for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to sue for a refund and Employer shall not be entitled ▇▇ initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 7(e) hereof, Employer shall have the right to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to a Final Determination; provided, however, that (i) Employer shall not, without Employee's prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer's control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any similar other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee's expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax imposed claimed (pursuant to an Employee Claim) that has been advanced by state Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or local lawcause to be paid to Employer any refund actually received by, or any interest or penalties actually credited to, Employee with respect to such tax (such tax or taxes, together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such interest or penalties, being hereafter collectively referred to as the “Excise Tax”taxing authority related thereto), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(1) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. If it is determined (a. In the event that any payments or benefits provided or to be provided by the reasonable computation by an independent accounting Company or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered Bank or their respective Affiliates to the Executive or for Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided ’s benefit pursuant to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive otherwise (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “Covered Payments”) constitute “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”or any successor provision thereto) thatand would, but for this Section 10 would 17(b), be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, law or any interest or penalties with respect to such tax taxes (such tax or taxescollectively, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable prior to the Executive shall not exceed payment or provision of the amount which produces Covered Payments the greatest after-tax benefit Parties will, to the extent practicable and reasonable, take such action and execute such documents as may be necessary to ensure that none of the Covered Payments will constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto), and in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that none of the Covered Payments will constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto), then a calculation shall be made comparing (A) the Net Benefit (as defined below) to Executive of the Covered Payments after taking into account any payment of the Excise Tax to be payable by (B) the Net Benefit to Executive as determined by if the Firm upon discussion with, and reasonable approval by, Covered Payments are reduced to the Executiveminimum extent necessary to avoid being subject to the Excise Tax. For the avoidance of doubt, this provision will reduce Only if the amount of Parachute calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments otherwise payable be reduced to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted minimum extent necessary to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, ensure that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the no portion of the Parachute Covered Payments that are payable in cash and then by reducing or eliminating is subject to the non-cash portion Excise Tax. The term “Net Benefit” shall mean the present value of the Parachute PaymentsCovered Payments net of all federal, state, local, foreign income, employment, and excise taxes. Any reduction made pursuant to this Section 17(b) shall be made in each case in reverse order beginning a manner determined by Company that is consistent with payments or benefits which are to be paid the furthest in time from the date requirements of Section 409A of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationCode.

Excise Tax. (a) If it is determined (by pursuant to any of the reasonable computation by an independent accounting provisions of this Cancellation Agreement, if the aggregate amounts due ▇▇▇▇ under this Cancellation Agreement and any other plan or consulting firm chosen by program of the Company (the constitutes a “FirmParachute Payment”, as such term is defined in IRC Section 280(G), which determination shall be certified by the Firm and set forth in as a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any result thereof there is an excise tax imposed by on ▇▇▇▇ pursuant to IRC Section 4999 of the Code (on all or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect part of such “Parachute Payments). The Executive shall be permitted to provide to Payment” received by ▇▇▇▇ from the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written noticeCompany, the Company shall reduce or eliminate reimburse ▇▇▇▇ for (i) such excise tax payment required to be paid by ▇▇▇▇ plus (ii) income taxes and additional excise taxes required to be paid by ▇▇▇▇ because of any reimbursement of excise and income taxes required to be paid by ▇▇▇▇ pursuant to clause (i) and this clause (ii) of this Section 10, all so that all excise taxes and income taxes on the Parachute Payments by first reducing or eliminating the portion amount of the reimbursement to ▇▇▇▇ for such excise taxes and income taxes required to be paid by ▇▇▇▇ on account of such “Parachute Payments that are payable Payment” and such reimbursements shall be borne by the Company and not by ▇▇▇▇. (b) Anything in cash and then by reducing or eliminating this Cancellation Agreement to the non-cash portion contrary notwithstanding if the aggregate of the amounts due ▇▇▇▇ under this Cancellation Agreement and any other plan or program of the Company constitutes a “Parachute PaymentsPayment” then, at ▇▇▇▇’ option, the payments to be made to ▇▇▇▇ under this Cancellation Agreement and under such other plan or program of the Company, shall be reduced to an amount which, when added to the aggregate of all other payments to ▇▇▇▇ will not make the total amount of such payments a “Parachute Payment”. If payments to ▇▇▇▇ included in each case determining whether ▇▇▇▇ is receiving an IRC 280(G) “Parachute Payment” include the value of the Warrants and other obligations of the Company hereunder and ▇▇▇▇ makes the election provided in reverse order beginning with payments or benefits this Section 11(b),then which items of payment are to be paid eliminated (cash, the furthest in time from Warrants or the date of the FirmCompany’s determination. Except as set forth in the preceding sentence, other obligations hereunder or any notice given combination thereof) shall be made by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation▇▇▇▇.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”)to or for Executive’s benefit, which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provision theretothe “Code”) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable as described below) shall be reduced if, and only to the extent that, such reduction will allow Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise receive a greater Net After Tax to be payable by the Executive Amount (as determined by the defined below) than he/she would receive absent such reduction. (b) The Accounting Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision (as defined below) will reduce first determine the amount of any Parachute Payments otherwise (as defined below) that are payable to Executive. The Accounting Firm also will determine the Net After Tax Amount attributable to Executive, if doing so would place ’s total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to Executive in a better net after-tax economic position as compared with not doing so (taking into account without subjecting Executive to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) Executive then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments, whichever provides Executive with the higher Net After Tax Amount. If Executive will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the Accounting Firm will determine which Payments will be reduced so as to achieve the principle set forth in this Section 5. For purposes of making the calculations required by this Section 5, the Accounting Firm may make reasonable assumptions and approximations and may rely on reasonable, good faith interpretations concerning the application of the Code and other applicable legal authority. The Accounting Firm will notify Executive and the Company if it determines that the Parachute Payments must be reduced and will send Executive and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 5, it is possible that amounts will have been paid or distributed to Executive that should not have been paid or distributed under this Section 5 (“Overpayments”), or that additional amounts should be paid or distributed to Executive under this Section 5 (“Underpayments”). The If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or Executive, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that Executive shall be permitted to provide must repay to the Company written notice specifying which of together with interest at the Parachute Payments will be subject to reduction or eliminationapplicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by Executive and no amount will be payable by Executive to the Company unless, and then only to the extent that, the deemed debt and payment would either reduce the amount on which Executive is subject to tax under Code Section 4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or substantial authority, that an Underpayment has occurred, the Accounting Firm will notify Executive and the Company of that determination and the amount of that Underpayment will be paid to Executive by the Company promptly (and no later than 30 days) after the final determination of the Underpayment, which is when Executive’s ability legally binding right to exercise such authority would cause any Parachute Payment to become subject to any Underpayment first arises. (f) For purposes of this Section 409A Tax, or if the Executive does not provide the Company with any such written notice5, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. If (i) Anything in this Agreement to the contrary notwithstanding, in the event that it is shall be determined that any payment (by including any of the reasonable computation by an independent accounting Tax Gross-Up Payments as defined below in this Section 9(d)) or consulting firm chosen benefit (including any accelerated vesting of options or other equity awards) made or provided, or to be made or provided, by the Company or the REIT (or any successor thereto or affiliate thereof) to or for the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to benefit of the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided whether pursuant to the Executive under the terms of this Agreement or under Agreement, any other agreement, plan, programprogram or arrangement of or with the Company or the REIT (or any successor thereto or affiliate thereof) or otherwise (a “Total Payment”), policywill be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or other arrangementany comparable tax imposed by any replacement or successor provision of United States tax law (the “Excise Tax”), either alone or in combination with other elements of compensation and benefits paid or provided then the Company shall pay to the Executive one or more additional cash payments (the “Tax Gross-Up Payments”) in such amounts so that the net cash amount retained by the Executive, after deduction or payment of (A) the Excise Tax imposed on the Total Payments (including the Excise Tax imposed on the Tax Gross-Up Payments) and (B) all federal, state and local income and employment taxes imposed upon the Tax Gross-Up Payments, shall equal the excess of the Total Payments over the Tax Gross-Up Payments (it being understood that this is a circular definition that requires a reiterative calculation). (ii) One or more determinations (each a “Tax Determination”) as to (A) whether any paymentof the Total Payments will be subject to the Excise Tax, distribution(B) the amount of the Excise Tax imposed thereon, benefit or entitlement and (C) the calculation of the related Tax Gross-Up Payment shall be made by the Company in consultation with such accounting and tax professionals as the Company considers necessary (with all costs related thereto paid by the Company). For purposes of determining whether any person or entity effecting a Change in Control)of the Total Payments will be subject to the Excise Tax, in each case, that could (1) all of the Total Payments shall be considered treated as “parachute payments” (within the meaning of Section 280G of the Code Code) unless and to the extent that, in the written opinion of independent tax counsel selected (such and paid for) by the Company and reasonably acceptable to the Executive (“Tax Counsel”), certain Payments do not constitute parachute payments, and (2) all “excess parachute payments” (within the “Parachute Payments”meaning of Section 280G of the Code) shall be treated as subject to the Excise Tax unless and only to the extent that, in the written opinion of Tax Counsel (upon which the Executive may rely), such excess parachute payments are not subject to the Excise Tax. For purposes of determining the amount of any Tax Gross-Up Payment, the Executive shall be deemed to pay (x) federal income tax at the highest marginal rate in effect for the calendar year during which such Tax Gross-Up Payment is to be made, (y) FICA taxes at the highest rate applicable to wages in excess of the Social Security taxable wage base in effect for such calendar year, and (z) state and local income taxes at the highest marginal rates in effect for such calendar year in the state and local municipality of the Executive’s principal residence as of the date of termination or the date that any portion of the Total Payment becomes subject to the Excise Tax, net of the reduction in federal income tax attributable to the deduction of such state and local income taxes, and taking into account any limitation on deductions or credits or comparable negative impact for purposes of federal income tax as a result of the Total Payments made to the Executive during such calendar year. (iii) An initial Tax Gross-Up Payment shall be made to the Executive on the date that the Change of Control Severance Payment is made, and within ten (10) days after each date that any portion of any Total Payment other than the Change of Control Severance Payment becomes subject to the Excise Tax (each such date is referred to as a “Payment Date”); provided that if the amount thereof cannot be fully determined by the Payment Date, the Company shall pay to the Executive by the Payment Date an estimate of such payment, determined by the Company reasonably and in good faith, and the Company shall pay to the Executive the remainder of such payment (if any) as soon as the amount thereof can be determined but for this Section 10 would be payable in no event later than twenty (20) days after the Payment Date. Whenever any Tax Gross-Up Payment (or estimate thereof) is made to the Executive, exceeds the greatest amount of Parachute Payments that could be paid Company shall provide to the Executive the Company’s Tax Determination related to such payment, together with detailed supporting calculations and explanations and, if applicable, opinions of Tax Counsel. The Executive shall have the right to dispute any Tax Determination (a “Tax Dispute”) by so notifying the Company within fifteen (15) days after receiving such Tax Determination and the required supporting documentation. Each Tax Determination shall become final and binding upon the parties (A) if there is no Tax Dispute, at the end of such fifteen (15) day period, without giving rise change, or (B) if there is a Tax Dispute, upon final resolution of such Tax Dispute, with such changes as may result from such Tax Dispute. Other than the initial or an estimated Tax Gross-Up Payment as provided for above, any Tax Gross-Up Payment due from the Company to the Executive shall be paid within five (5) days after the related Tax Determination becomes final and binding, provided that, in the event of a Tax Dispute, any liability for any excise tax imposed by Section 4999 undisputed portion of the Tax Gross-Up Payment shall be paid within five (5) days after the Executive notifies the Company of the Tax Dispute. (iv) The parties acknowledge that, as a result of potential uncertainties in the application of the provisions of the Code dealing with the Excise Tax, it is possible that Tax Gross-Up Payments should have been made by the Company but were not (an “Underpayment”) or that Tax Gross-Up Payments made by the Company should not have been made (an “Overpayment”). In either such event, the Company shall make a Tax Determination of the amount of the Underpayment or Overpayment that has occurred, and the Executive shall have the right to initiate a Tax Dispute related thereto. In the case of an Underpayment, the amount of such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of amended returns and claims for refunds), follow the Company’s reasonable instructions and otherwise reasonably cooperate with the Company to correct such Overpayment. (v) Notwithstanding anything to the contrary in this Section 9(d), in the event that the Total Payment may be structured or allocated in such a manner so as to minimize or eliminate the Excise Tax and, therefore, the Tax Gross-up Payments without reducing the value of the Total Payment that the Executive is entitled to receive, the Executive agrees to provide such assistance as is reasonabley necessary so that the Company (or any successor provision thereto) can eliminate or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net afterTax Gross-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute up Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the distributions or benefits being individually referred to herein as a “Parachute Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) that), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (excise tax, and any interest in respect of such penalties, additions to tax or taxes, together with any such interest or penaltiesadditional amounts, being hereafter collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the aggregate Gross-Up Payment, Employee retains an amount of Parachute Payments payable such Gross-Up Payment equal to the Executive Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a “Determination”) required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer’s expense, by nationally recognized tax counsel selected by Employer (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer’s expense, be paid by Employer to or for the benefit of Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not exceed in any way affect Employee’s right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made (“Underpayment”), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at Employer’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at Employer’s expense, determine the amount which produces of the greatest Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 (“Claim”), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim (“Tax Claim Notice”). (e) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing (“Election Notice”) that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer’s sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), s▇▇ for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to s▇▇ for a refund and Employer shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax benefit basis, from any tax imposed as a result of such reimbursement. (f) Subject to the Executive after taking into account any Excise Tax provisions of Section 7(e) hereof, Employer shall have the right to be payable defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by the Executive as determined by the Firm upon discussion withall appropriate proceedings, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive which proceedings shall be permitted defended or prosecuted diligently by Employer to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationa Final Determination; provided, however, that (i) Employer shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer’s control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax claimed (pursuant to an Employee Claim) that has been advanced by Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or cause to be paid to Employer any refund actually received by, or actually credited to, Employee with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(1) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements to Code; (C) any benefits or compensation.disallowance of

Excise Tax. If it is determined In the event you become entitled to any amounts payable in connection with a change in control (by the reasonable computation by an independent accounting whether or consulting firm chosen by the Company not such amounts are payable pursuant to this Agreement) (the “Firm”"Severance Payments"), which determination shall be certified by the Firm and set forth in a certificate delivered if any of such Severance Payments are subject to the Executivetax (the "Excise Tax") that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by federal, state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being that may hereafter collectively referred to as the “Excise Tax”be imposed), then the aggregate Company shall pay to you at the time specified in Section 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 3(c), shall be equal to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the ExecutiveTotal Payments. For the avoidance purposes of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Severance Payments will be subject to reduction or elimination; provided, however, that to the extent that Excise Tax and the Executive’s ability to exercise amount of such authority would cause Excise Tax: (i) any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are received or to be paid the furthest received by you in time from the date connection with a Change in Control or your termination of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive employment (whether pursuant to the preceding sentence shall take precedence over the provisions terms of this Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and entitlements all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and (iii) the value of any non-cash benefits or compensation.any deferred

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the “Severance Payments”) of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee’s termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the ExecutiveEmployee’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. If it is determined (by a) In the reasonable computation by an independent accounting event that the Executive becomes entitled to the payments and benefits provided under this Agreement and/or any other payments or consulting firm chosen by benefits in connection with a change in control or termination of the Executive’s employment with the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a change in control or any person affiliated with the Company or such person) (collectively, or other arrangementthe “Payments”), either alone or in combination with other elements and if any of compensation and benefits paid or provided the Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code and the aggregate amount of the Payments is less than 330% of the “base amount,” then the aggregate present value of the payments made pursuant to the terms of this Agreement alone without taking into account payments made pursuant to any other agreements between the Company and the Executive shall be reduced so that the Payment equals 299.99% of the “base amount” (including it being understood that in no event shall the amount of the payment made pursuant to the terms of this Agreement be less than $0). (b) For purposes of determining whether any paymentof the Payments will be subject to the Excise Tax and the amount of such Excise Tax, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could (i) the Payments shall be considered treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (such paymentsshall be treated as subject to the Excise Tax, unless, in the opinion of Independent Tax Counsel, the “Parachute Payments”Payments (in whole or in part) that, but for this Section 10 would be payable do not constitute parachute payments or excess parachute payments or are otherwise not subject to the ExecutiveExcise Tax, exceeds (ii) the greatest amount of Parachute the Payments that could which shall be paid treated as subject to the Executive without giving rise Excise Tax shall be equal to any liability for any excise tax imposed by Section 4999 the lesser of (A) the total amount of the Code Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), and (iii) the value of any non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of Sections 280G(d)(3) and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which 4) of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationCode.

Excise Tax. If it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered a) Any other provision of this Agreement to the Executivecontrary notwithstanding, if the present value (as defined herein) that of the aggregate total amount of the payments, distributions, payments and benefits and entitlements of any type to be paid or provided to the Executive you under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided which are considered to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “"parachute payments” " within the meaning of Section 280G(b) of the Internal Revenue Code of 1986, as amended (the "Code"), when added to any other such "parachute payments" received by you from the Company upon or after a Change of Control, whether or not under this Agreement, is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, the Company shall pay to you an additional amount (hereinafter referred to as the "Excise Tax Premium"). The Excise Tax Premium shall be equal to the excise tax determined under Code Sections 280G and 4999 attributable to the total amount of payments and benefits to be paid or provided to you under this Agreement and any other "parachute payments" received by you upon or after a Change of Control. The Excise Tax Premium shall also include any amount attributable to excise tax on the Excise Tax Premium. The Company shall also pay to you an additional amount (the "Additional Amount") such that the net amount received by you, after paying any applicable Excise Tax Premium and any federal or state income, excise or other tax on such additional amount, shall be equal to the amount that you would have received if such Excise Tax Premium were not applicable. You shall be deemed to pay income taxes on the date of termination of your employment at the highest marginal rate of income taxation in effect in your taxing jurisdiction. The Additional Amount shall include any amount attributable to income, excise or other tax on the Additional Amount. (b) Not later than 30 days following your Termination Date or, if later, the Effective Date, as provided herein, the independent public accountants acting as auditors for the Company on the date of the Change of Control (or another accounting firm designated by you) shall determine whether the sum of the present value of any "parachute payments" payable under this Agreement and the present value of any other "parachute payments" received by you from the Company upon or after a Change of Control is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, and shall determine the amount of any Excise Tax Premium and Additional Amount payable to you. The Excise Tax Premium and Additional Amount shall be paid to you as soon as practicable but in no event later than 30 days following your Termination Date, and shall be net of any amounts required to be withheld for taxes. (c) For purposes of this Section 3, "present value" means the value determined in accordance with the principles of Section 1274(b)(2) of the Code under the rules provided in Treasury Regulations under Section 280G of the Code. (d) References to Code (such paymentsSection 280G herein are specific references to Section 280G as added to the Code by the Tax Reform Act of 1984 and as amended by the Tax Reform Act of 1986. To the extent Code Section 280G is again amended prior to the termination of this Agreement, or is replaced by a successor statute, the “Parachute Payments”) that, but for provisions of this Section 10 would 3 shall be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive deemed modified without giving rise to any liability for any excise tax imposed by Section 4999 further action of the parties in a manner consistent with such amendments or successor statutes, as the case may be. In the event that Code (Section 280G or any successor provision thereto) or statute is repealed, this Section 6 shall cease to be effective on the effective date of such repeal. The parties recognize that Treasury Regulations under Code Sections 280G and 4999 may affect the amount that may be paid hereunder and agree that, upon the issuance of any similar tax imposed by state or local lawsuch regulations, or any interest or penalties with respect this Agreement may be modified as in good faith may be deemed necessary in light of the provisions of such regulations to achieve the purposes hereof, and that consent to such tax modifications shall not be unreasonably withheld. (such tax or taxese) The foregoing notwithstanding, together with if you receive payment from the Company for reimbursement of any such interest or penaltiesexcise taxes pursuant to any other agreement, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account extent any Excise Tax Premium under this Agreement be duplicative, you shall not be entitled to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance receive payment of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the such an Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationPremium.

Excise Tax. If it is determined (a) The parties hereto agree to reasonably cooperate with each other to minimize any taxes that may be imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") which may include, at the Executive's election, the Executive waiving a portion of his payment unless approved by the reasonable computation by an independent accounting shareholders. Notwithstanding the foregoing, whether or consulting firm chosen not the Executive becomes entitled to any payments hereunder, if any of the payments or benefits received or to be received by the Company (the “Firm”), which determination shall be certified by the Firm and set forth Executive in connection with a certificate delivered to Change in Control or the Executive) that the aggregate amount 's termination of the payments, distributions, benefits and entitlements of any type paid or provided employment pursuant to the Executive under the terms of this Agreement or under any other planthe Company's Stock Option Plans (all such payments and benefits, programexcluding the Gross-Up Payment, policybeing hereinafter referred to as the "Total Payments") will be subject to excise tax imposed by section 4999 of the Code, or other arrangementany interest or penalties are incurred by Executive with respect to such excise tax (such excise tax together with any such interest and penalties are hereinafter collectively referred to as the "Excise Tax"), either alone or in combination with other elements of compensation and benefits paid or provided the Company shall pay to the Executive an additional amount (including the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any paymentExcise Tax on the Total Payments and any federal, distributionstate and local income and employment taxes and Excise Tax upon the Gross-Up Payment, benefit or entitlement made by shall be equal to the Total Payments. (b) For purposes of determining whether any person or entity effecting a Change in Control)of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, in each case, that could (I) all of the Total Payments shall be considered “treated as "parachute payments” " (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, and (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 11), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the 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 and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined, in accordance with the procedures set forth in Section 11(d) below, to exceed the amount taken into account hereunder in calculating the Gross-Up Payment, the matter shall be determined in accordance with the procedures set forth in Section 11(d) below. 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 Total Payments. (d) Executive shall notify the Company in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by the Company of an additional Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) calendar days after Executive actually receives notice in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid; provided, however, that the failure of Executive to notify the Company of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to the Executive under this Section except to the extent that the Company is materially prejudiced in the defense of such claim as a direct result of such failure. Executive shall not, unless otherwise required by the Internal Revenue Service, pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such 30-day period that it desires to contest such claim, the Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to Executive; (3) cooperate with the Company in good faith in order effectively to contest such claim; and (4) if the Company elects not to assume and control the defense of such claim, permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any additional Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses, without, however, any duplication of the previously paid Gross-Up Payments. Without limiting the foregoing provisions of this paragraph, the Company shall have the right, at its sole option, to assume the defense of and control all proceedings in connection with such contest, in which case it may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any additional Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance, without, however, any duplication of the previously paid Gross-Up Payments; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's right to assume the defense of and control the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case maybe, any other issue raised by the Internal Revenue Service or any other taxing authority. (e) The payments provided in this Section 11 shall be made not later than the fifth (5th) day following the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-up Payment is calculated for purposes of this Section 11); provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, in accordance with this Section 11, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder (or on all such payments to the extent the Company fails to make such payments when due) at 120% of the rate provided in section l274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at 120% of the rate provided in section l274(b)(2)(B) of the Code). (f) This Agreement and the equity awards described in Section 6 herein shall be approved by the stockholders of the Company in accordance with Section 280G of the Code (and Treas. Reg. 1.280G-1 Q/A-7 and if such payments, the “Parachute Payments”) that, but for this Section 10 would be payable approval is not obtained prior to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubtEffective Time, this provision will reduce Agreement shall become null and void on the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationEffective Time.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the distributions or benefits being individually referred to herein as a “Parachute Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) that), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (excise tax, and any interest in respect of such penalties, additions to tax or taxes, together with any such interest or penaltiesadditional amounts, being hereafter collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the aggregate Gross-Up Payment, Employee retains an amount of Parachute Payments payable such Gross-Up Payment equal to the Executive Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a “Determination”) required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer’s expense, by nationally recognized tax counsel selected by Employer (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer’s expense, be paid by Employer to or for the benefit of Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not exceed in any way affect Employee’s right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made (“Underpayment”), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at Employer’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at Employer’s expense, determine the amount which produces of the greatest Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 (“Claim”), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim (“Tax Claim Notice”). (e) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing (“Election Notice”) that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer’s sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), ▇▇▇ for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to ▇▇▇ for a refund and Employer shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax benefit basis, from any tax imposed as a result of such reimbursement. (f) Subject to the Executive after taking into account any Excise Tax provisions of Section 7(e) hereof, Employer shall have the right to be payable defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by the Executive as determined by the Firm upon discussion withall appropriate proceedings, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive which proceedings shall be permitted defended or prosecuted diligently by Employer to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationa Final Determination; provided, however, that (i) Employer shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer’s control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax claimed (pursuant to an Employee Claim) that has been advanced by Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or cause to be paid to Employer any refund actually received by, or actually credited to, Employee with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in time from the date Section 7(e)(1) hereof or, after delivery of the Firm’s determination. Except as set forth in the preceding sentencesuch Election Notice, any notice given by the Executive pursuant Employer fails to the preceding sentence shall take precedence over comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any other plantime thereafter have the right (but not the obligation), arrangement at his election and in his sole and absolute discretion, to defend or agreement governing prosecute, at the Executive’s rights sole cost, expense and entitlements risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any benefits defense, prosecution, settlement or compensation.compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect

Excise Tax. If it is determined (by a) In the reasonable computation by an independent accounting event that the Executive becomes entitled to the payments and benefits provided under this Agreement and/or any other payments or consulting firm chosen by benefits in connection with a change in control or termination of the Executive’s employment with the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a change in control or any person affiliated with the Company or such person) (collectively, or other arrangementthe “Payments”), either alone or in combination with other elements and if any of compensation and benefits paid or provided the Payments will be subject to the tax (the “Excise Tax”) imposed by Section 4999 of the Code and the aggregate amount of the Payments is less than 330% of the “base amount,” then the aggregate present value of the payments made pursuant to the terms of this Agreement alone without taking into account payments made pursuant to any other agreements between the Company and the Executive shall be reduced so that the Payment equals 299.99% of the “base amount” (including it being understood that in no event shall the amount of the payment made pursuant to the terms of this Agreement be less than $0). (b) For purposes of determining whether any paymentof the Payments will be subject to the Excise Tax and the amount of such Excise Tax, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could (i) the Payments shall be considered treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(I) of the Code (such paymentsshall be treated as subject to the Excise Tax, unless, in the opinion of Independent Tax Counsel, the “Parachute Payments”Payments (in whole or in part) that, but for this Section 10 would be payable do not constitute parachute payments or excess parachute payments or are otherwise not subject to the ExecutiveExcise Tax, exceeds (ii) the greatest amount of Parachute the Payments that could which shall be paid treated as subject to the Executive without giving rise Excise Tax shall be equal to any liability for any excise tax imposed by Section 4999 the lesser of (A) the total amount of the Code Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(I) (after applying clause (i) above), and (iii) the value of any non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which 4) of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationCode.

Excise Tax. If it is determined (by Notwithstanding anything to the reasonable computation by an independent accounting or consulting firm chosen by contrary in this Agreement, in the Company event that Employee becomes entitled to severance payments, if any of the severance payments will be subject to the tax (the “FirmExcise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), which determination Zenith shall pay to Employee an additional amount (the “Gross-Up Payment”) such that the net amount retained by Employee, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income and other tax and Excise Tax upon the payment provided for herein, shall be certified by the Firm and set forth in a certificate delivered equal to the Executive) that Total Payments. For purposes of determining whether any of the aggregate Total Payments will be subject to the Excise Tax and the amount of the paymentssuch Excise Tax, distributions, (i) any other payments or benefits and entitlements received or to be received by Employee in connection with a Change in Control or Employee’s termination of any type paid or provided employment (whether pursuant to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with Employer, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting whose actions result in a Change in ControlControl or any person affiliated with Employer or such person (which, together with severance payments, shall constitute “Total Payments”)), in each case, that could shall be considered treated as “parachute payments” within the meaning of Section 280G 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Zenith’s independent auditors and acceptable to Employee, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount, within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Zenith’s independent auditors 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, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee’s residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such paymentsstate and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of Employee’s employment, Employee shall repay to Zenith, at the time that the amount of such reduction in Excise Tax is finally determined, the “Parachute Payments”) that, but for this Section 10 would be payable portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the ExecutiveExcise Tax and federal, exceeds state and local income tax imposed on the greatest amount of Parachute Payments that could be paid Gross-Up Payment being repaid by the Employee to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local lawincome 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 Employee’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), Zenith shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or any interest or penalties additions payable by the Employee with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as excess) at the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce time that the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments)excess is finally determined. The Executive Gross-Up Payment shall be permitted to provide to made not later than the Company written notice specifying which fifth day following the date of the Parachute Payments will be subject to reduction or elimination; termination of employment, provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does amounts of such payments cannot provide the Company with any be finally determined on or before such written noticeday, the Company Zenith shall reduce or eliminate the Parachute Payments pay to Employee on such day an estimate, as determined in good faith by first reducing or eliminating the portion Zenith, of the Parachute Payments that are payable minimum amount of such payments to which Employee is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in cash and then by reducing or eliminating the non-cash portion Section 1274(b)(2)(B) of the Parachute Payments, Code) as soon as the amount thereof can be determined but in each case in reverse order beginning with payments or benefits which are to be paid no event later than the furthest in time from thirtieth (30th) day after the date of termination of employment. In the Firm’s determinationevent that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Zenith to Employee, payable on the fifth (5th) business day after demand by Zenith (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). Except as set At the time that payments are made under this Paragraph, Zenith shall provide Employee with a written statement setting forth the manner in which such payments were calculated and the preceding sentencebasis for such calculations including, without limitation, any notice given by the Executive pursuant opinions or other advice Zenith has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationstatement).

Excise Tax. If it is determined (a) Whether or not the Executive becomes entitled to any payments hereunder, if any of the payments or benefits received or to be received by the reasonable computation by an independent accounting Executive in connection with a Change in Control or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount 's termination of the payments, distributions, benefits and entitlements of any type paid or provided employment pursuant to the Executive under the terms of this Agreement or under any other planthe Stock Option Plan (all such payments and benefits, programexcluding the Gross-Up Payment, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided being hereinafter referred to as the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could "Total Payments") will be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local lawCode, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax or taxes, together with any such interest or penalties, being hereafter and penalties are hereinafter collectively referred to as the “"Excise Tax”"), then the aggregate amount of Parachute Payments payable Company shall pay to the Executive shall not exceed an additional amount (the "Gross-Up Payment") such that the net amount which produces retained by the greatest after-tax benefit to the Executive Executive, after taking into account deduction of any Excise Tax to on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable equal to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so Total Payments. (taking into account the Excise Tax payable in respect b) For purposes of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Total Payments will be subject to reduction or elimination; providedthe Excise Tax and the amount of such Excise Tax, however(I) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, that in the opinion of tax counsel ("Tax Counsel") selected by the Company and reasonably acceptable to the extent that the Executive’s ability to exercise , such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest (in time from the date whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Firm’s determination. Except Code, and (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as set forth subject to the Excise Tax unless, in the preceding sentenceopinion of Tax Counsel, any notice given by such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the Executive pursuant meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the preceding sentence shall take precedence over the provisions Excise Tax. For purposes of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.determining the

Excise Tax. If it is determined (a) In the event that any payment benefit or other entitlement received or to be received by the reasonable computation by an independent accounting or consulting firm chosen by you in connection with a Change of Control of the Company or the termination of your employment (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered whether payable pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a Change of Control of the Company or any person affiliated with the Company or such person (the “Total Payments”, and each a “Payment”)) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or other arrangementany corresponding provisions of state or local tax laws, either alone or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest and penalties, is hereinafter collectively referred to as (the “Excise Tax”), then you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in combination an amount such that after payment by you of all taxes (including, but not limited to, any income taxes, employment taxes, Excise Taxes and any interest or penalties imposed with other elements respect to any such taxes) imposed upon the Gross-Up Payment, you will retain an amount of compensation and benefits paid or provided the Gross-Up Payment equal to the Executive (including any paymentExcise Tax imposed upon the Payments. Those Payments that are subject to the Excise Tax shall be referred to herein as the “Parachute Payments”. Notwithstanding the foregoing provisions of this Section 10, distributionif it shall be determined that you are entitled to a Gross-Up Payment, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, but that could the portion of the Payments that would be considered treated as “parachute payments” within the meaning of under Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds does not exceed 105% of the greatest amount of Parachute Payments that could be paid or otherwise provided to you such that the Executive without giving receipt of Parachute Payments would not give rise to any liability Excise Tax (the “Safe Harbor Amount”) then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the total Parachute Payments are reduced to the Safe Harbor Amount. The reduction of the amounts payable or otherwise provided under this Agreement, if applicable, shall be made by first reducing the Parachute Payments under Section 7(a); unless an alternative method of reduction is elected by you. For purposes of reducing the total Parachute Payments to the Safe Harbor Amount, only Parachute Payments payable or otherwise provided under this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable or otherwise to be provided under this Agreement would not result in a reduction of the total Parachute Payments to the Safe Harbor Amount, no amounts payable or otherwise to be provided under this Agreement shall be reduced pursuant to this Section 10. The Company’s obligation to make Gross-Up Payments under this Section 10 shall not be conditioned upon your termination of employment. To the extent it is reasonable and proper for you to do so, you will cooperate with the Company and its tax advisors to minimize exposure to Excise Tax pursuant to this Section, including agreement to reasonable allocation of your compensation and reasonable changes in this Agreement, provided that any excise tax imposed such allocation or change does not result in any loss of value or other adverse consequence to you. b) All determinations required to be made under this Section 10, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by third party independent accountants (the “Accountants”) in consultation with you and your advisors. The Accountants shall provide detailed supporting calculations to you within fifteen (15) business days of the receipt of notice from you that there has been a Payment (or, if later, within fifteen (15) days of the date it is determined by the Accountants that the Payment is subject to the Excise Tax). In connection with any such calculations, the Accountants shall provide you with a written opinion explaining the basis for their conclusions with respect to the applicability or inapplicability of Section 4999 of the Code Code. Any Gross-Up Payment, as determined pursuant to this Section, shall be paid by the Company to you within five days of the receipt of the Accountant’s determination. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that either (A) the Company does not dispute that you are required to make a payment of Excise Tax or (B) the Company exhausts its remedies pursuant to this Section 10 and you thereafter are required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for your benefit. If (x) it is established pursuant to (i) a final determination of a court or (ii) an Internal Revenue Service proceeding from either of which no appeal can be taken or (y) a written opinion is provided by independent counsel agreed upon by the parties that the Excise Tax is less than the amount taken into account under Section 10 of this Agreement, you shall repay to the Company within thirty (30) days of your receipt of notice of such final determination or opinion the portion of the Gross-Up Payment attributable to such reduction plus any interest received by you on the amount of such repayment (after taxes applicable thereto). c) You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after you are informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the expiration of the 30-day period following the date on which you give such notice to the Company (or such shorter period ending on the date that any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties payment of taxes with respect to such tax (claim is due). If the Company notifies you in writing prior to the expiration of such tax or taxesperiod that it desires to contest such claim, together you shall: i) give the Company any information reasonably requested by the Company relating to such claim, ii) take such action in connection with any contesting such interest or penalties, being hereafter collectively referred to claim as the “Excise Tax”)Company shall reasonably request in writing from time to time, then the aggregate amount of Parachute Payments payable including, without limitation, accepting legal representation with respect to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable such claim by an attorney reasonably selected by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared Company, iii) cooperate with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of in good faith in order effectively to contest such claim, and iv) permit the Parachute Payments will be subject Company to reduction or eliminationparticipate in any proceedings relating to such claim; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such written noticerepresentation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall reduce control all proceedings taken in connection with such contest and, at its sole option, may pursue or eliminate forgo any and all administrative appeals, proceedings, hearings and conferences with the Parachute Payments taxing authority in respect of such claim and may, at its sole option, either direct you to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and you agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs you to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to you, on an interest-free basis, and shall indemnify and hold you harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for your taxable year with respect to which such contested amounts claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and you shall be entitled to settle or contest, as the case may be, any other issue raised by first reducing the Internal Revenue Service or eliminating any other taxing authority. d) If, after the receipt by you of an amount advanced by the Company pursuant to Section 10, you become entitled to receive any refund with respect to such claim, you shall (subject to the Company’s complying with the requirements of Section 10) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by you of an amount advanced by the Company pursuant to Section 10, a determination is made that you shall not be entitled to any refund with respect to such claim and the Company does not notify you in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. e) Notwithstanding any other provision of this Section 10, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for your benefit, all or any portion of the Parachute Payments any Gross-Up Payment, and you hereby consent to such withholding; provided, that are payable such withholding shall in cash and then by reducing or eliminating the nonno event place you in a less favorable after-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationtax position.

Excise Tax. If it is determined (by a) In the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) event that the aggregate amount Executive shall become entitled to payments and/or benefits provided by this Agreement or any other amounts in the "nature of the payments, distributions, benefits and entitlements of any type paid or provided compensation" (whether pursuant to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") or other arrangementany person affiliated with the Company or such person) as a result of a Change of Control (collectively the "Company Payments"), either alone or in combination with other elements of compensation and benefits paid or provided if such Company Payments will be subject to the Executive tax (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”"Excise Tax") that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or and any similar tax that may hereafter be imposed by state or local law, or any interest or penalties with respect taxing authority) the amounts of any Company Payments shall be automatically reduced to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred an amount one dollar less than an amount that would subject the Executive to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that the reduction shall occur only if the reduced Company Payments received by the Executive (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the unreduced Company Payments to be received by the extent that Executive minus (i) the Executive’s ability Excise Tax payable with respect to exercise such authority would cause any Parachute Payment Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. The Executive may elect which payments and benefits shall be reduced to become subject to any Section 409A Taxaccomplish the foregoing, or but, if the Executive does not provide make such an election, cash payments shall be reduced first. (b) For purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, (x) the Company Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "parachute payments" in excess of the "base amount" (as defined under Code Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of the Company's independent certified public accountants appointed prior to any change in ownership (as defined under Code Section 280G(b)(2)) or tax counsel selected by such accountants (the "Accountants") such Company Payments (in whole or in part) either do not constitute "parachute payments," including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the "base amount" or are otherwise not subject to the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. To the extent permitted under Revenue Procedure 2003-68, the value determination shall be recalculated to the extent it would be beneficial to the Executive, at the request of the Executive. (c) For purposes of making the calculation hereunder, the Executive shall be deemed to pay U.S. federal income taxes at the highest marginal rate of U.S. federal income taxation in the calendar year in which the Company Payments are to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence for the calendar year in which the Company Payments are to be made, net of the maximum reduction in U.S. federal income taxes which could be obtained from deduction of such written noticestate and local taxes if paid in such year. (d) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall reduce in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or eliminate associated income taxes, the Parachute Payments by first reducing or eliminating Executive shall permit the portion representative of the Parachute Payments that are payable in cash Company to accompany the Executive, and then by reducing or eliminating the non-cash portion Executive and the Executive's representative shall cooperate with the Company and its representative. (e) The Company shall be responsible for all charges of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by Accountants. (f) The Company and the Executive pursuant shall promptly deliver to the preceding sentence shall take precedence over the provisions each other copies of any other planwritten communications, arrangement or agreement governing and summaries of any verbal communications, with any taxing authority regarding the Executive’s rights and entitlements to any benefits or compensationExcise Tax.

Excise Tax. If it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered a) Any other provision of this Agreement to the Executivecontrary notwithstanding, if the present value (as defined herein) that of the aggregate total amount of the payments, distributions, payments and benefits and entitlements of any type to be paid or provided to the Executive you under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided which are considered to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “"parachute payments” " within the meaning of Section 280G(b) of the Internal Revenue Code of 1986, as amended (the "Code"), when added to any other such "parachute payments" received by you from the Company upon or after a Change of Control, whether or not under this Agreement, is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, the Company shall pay to you an additional amount (hereinafter referred to as the "Excise Tax Premium"). The Excise Tax Premium shall be equal to the excise tax determined under Code Sections 280G and 4999 attributable to the total amount of payments and benefits to be paid or provided to you under this Agreement and any other "parachute payments" received by you upon or after a Change of Control. The Excise Tax Premium shall also include any amount attributable to excise tax on the Excise Tax Premium. The Company shall also pay to you an additional amount (the "Additional Amount") such that the net amount received by you, after paying any applicable Excise Tax Premium and any federal or state income, excise or other tax on such additional amount, shall be equal to the amount that you would have received if such Excise Tax Premium were not applicable. You shall be deemed to pay income taxes on the date of termination of your service at the highest marginal rate of income taxation in effect in your taxing jurisdiction. The Additional Amount shall include any amount attributable to income, excise or other tax on the Additional Amount. (b) Not later than 30 days following your Termination Date as provided herein, the independent public accountants acting as auditors for the Company on the date of the Change of Control (or another accounting firm designated by you) shall determine whether the sum of the present value of any "parachute payments" payable under this Agreement and the present value of any other "parachute payments" received by you from the Company upon or after a Change of Control is in excess of the amount you can receive without causing you to be subject to an excise tax with respect to such amount on account of Code Section 4999, and shall determine the amount of any Excise Tax Premium and Additional Amount payable to you. The Excise Tax Premium and Additional Amount shall be paid to you as soon as practicable but in no event later than 30 days following your Termination Date, and shall be net of any amounts required to be withheld for taxes. (c) For purposes of this Section 8, "present value" means the value determined in accordance with the principles of Section 1274(b)(2) of the Code under the rules provided in Treasury Regulations under Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationCode.

Excise Tax. If Except as provided in Paragraph 2 of this Amendment, Section 10 of the Agreement will be deleted in its entirety and the following language will be inserted in its place: In the event that it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

Excise Tax. If it is determined In the event that the Employee becomes entitled to the payments and benefits provided in Section 3 (the “Severance Payments”) of this Addendum to the Employment Agreement, if any of the Severance Payments will be subject to the excise tax (the “Excise Tax”) imposed under Section 4999 of the Code, the Company shall pay to the Employee an additional amount (the “Gross‑Up Payment”) such that the net amount retained by the reasonable computation Employee, after deduction of any Excise Tax on the Severance Payments and any Federal, state and local income and employment tax and Excise Tax upon the payments and benefits provided for by an independent accounting Section 5 of this Addendum to the Employment Agreement, shall be equal to the Severance Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or consulting firm chosen benefits received or to be received by the Employee in connection with a change in ownership or control (within the meaning of section 280G of the Code and the regulations promulgated thereunder) of the Company or the Employee's termination of employment by the Company (the “Firm”), which determination shall be certified without Cause or by the Firm and set forth in a certificate delivered Employee for Good Reason (whether pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this the Employment Agreement or under any other plan, programarrangement or agreement with the Company, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person whose actions result in a change of control or entity effecting a Change in Control), in each case, that could any person affiliated with the Company or such person) shall be considered treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Employee such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G 280G(b)(4)(A) of the Code, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the “base amount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(l) of the Code (such paymentsafter applying clause (i), above), and (iii) the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount value of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (non-cash benefits or any successor provision thereto) deferred payment or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive benefit shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, Company's independent auditors in accordance with the principles of sections 280G(d)(3) and reasonable approval by, (4) of the ExecutiveCode. For the avoidance purposes of doubt, this provision will reduce determining the amount of Parachute Payments otherwise payable to the ExecutiveGross-Up Payment, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive Employee shall be permitted deemed to provide pay Federal income taxes at the highest marginal rate of Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the Company written notice specifying which highest marginal rate of taxation in the state and locality of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from Employee's residence on the date of termination, net of the Firm’s determination. Except as set forth maximum reduction in Federal income taxes which could be obtained from the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions deduction of any other plan, arrangement or agreement governing the Executive’s rights such state and entitlements to any benefits or compensationlocal taxes.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (by or otherwise provided or to be provided) to the reasonable computation by an independent accounting or consulting firm chosen Executive by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount or any of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive its affiliates under the terms of this Agreement or under any other plan, programprogram or arrangement under which Executive participates or is a party, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Controlthan amounts payable under this Section 10(d), in each case(collectively, that could be considered “the "PAYMENTS"), would constitute an "excess parachute payments” payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (such paymentsthe "CODE"), the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”"EXCISE TAX"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an "excess parachute payment," then the aggregate amount of Parachute the Payments payable to the Executive under this Agreement shall not exceed be reduced (a "REDUCTION") to the amount which produces the greatest after-tax benefit extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an "excess parachute payment," then the Executive shall be entitled to receive an additional payment from the Company (a "GROSS-UP PAYMENT") in an amount such that, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and the Executive (the "AUDITOR"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to the Executive within five (5) days of the receipt of the Auditor's determination. All determinations made by the Auditor shall be binding upon the Company and the Executive; provided that if, notwithstanding the Auditor's initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any Excise Tax additional interest and penalties (the "RECALCULATED AMOUNT") and the Company shall pay to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, excess of the Executive. For Recalculated Amount over the avoidance of doubt, this provision will reduce Gross-Up Payment initially paid to the Executive or the amount of Parachute the Payments otherwise payable to after the ExecutiveReduction, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so applicable, within five (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which 5) days of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion receipt of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion Auditor's recalculation of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationGross-Up Payment.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the distributions or benefits being individually referred to herein as a “Parachute Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) that), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (excise tax, and any interest in respect of such penalties, additions to tax or taxes, together with any such interest or penaltiesadditional amounts, being hereafter collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in Section 7(i)) imposed upon the aggregate Gross-Up Payment, Employee retains an amount of Parachute Payments payable such Gross-Up Payment equal to the Executive Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a “Determination”) required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer’s expense, by nationally recognized tax counsel selected by Employer (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”). The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer’s expense, be paid by Employer to or for the benefit of Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not exceed in any way affect Employee’s right to receive the amount which produces the greatest afterGross-tax benefit Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the Executive after taking into account provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made (“Underpayment”), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at Employer’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax to be payable by or any additional Excise Tax, as the Executive as determined by the Firm upon discussion withcase may be, and reasonable approval byTax Counsel shall, the Executive. For the avoidance of doubtat Employer’s expense, this provision will reduce determine the amount of Parachute Payments otherwise payable the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgments, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(h)) that any Payment is subject to the ExecutiveExcise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if doing so would place pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 (“Claim”), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the Executive other party hereto in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect writing of such Parachute PaymentsClaim (“Tax Claim Notice”). The Executive . (e) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be permitted solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney. (f) Employer shall have the right to provide defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationa Final Determination; provided, however, that (i) Employer shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer’s control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) In the case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the extent terms of this Section 7(g), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the Executive’s ability costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to exercise Employee, within ten calendar days after such authority would cause Final Determination. In the case of any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does Employee Claim not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments covered by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(g), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(g)) shall be made within the time and in the manner otherwise provided in this Section 7(g). (h) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. If it (a) In the event that Executive is determined (by as described below) to be subject to excise tax under Section 4999 of the reasonable computation by an independent accounting or consulting firm chosen by Internal Revenue Code of 1986, as amended (the "Code"), with respect to any payments hereunder other than payments provided pursuant to Section 8(d)(ix) hereunder (the "Excise Tax"), the Company shall pay to Executive as additional compensation an amount (the “Firm”)"Gross-Up Payment") which, which determination shall be certified by the Firm after taking into account any federal, state and set forth in a certificate delivered to the Executive) that the aggregate amount of the paymentslocal income tax, distributions, benefits Medicare payroll deduction and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by under Section 4999 of the Code (the "Executive Taxes") upon the payment provided for by this Section 9, shall be equal to the amount of such Excise Tax. For purposes of determining whether Executive is subject to the Excise Tax, (i) any payments or benefits received by Executive (whether pursuant to the terms hereof or pursuant to any plan, arrangement or other agreement with the Company or any successor provision theretoentity affiliated with the Company) which payments (the "Contingent Payments") are deemed contingent on a change described in Section 280G(b)(2)(A)(i) of the Code shall be taken into account, (ii) the amount of payments or benefits under this Agreement treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of all such payments and benefits hereunder as are Contingent Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code payable to Executive and (iii) Executive shall be deemed to pay the Executive Taxes at the highest marginal applicable rates of such taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local Executive Taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and Executive Taxes thereon) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event any similar tax imposed by portion of the Gross-Up Payment to be refunded to the Company has been paid to any federal, state or local lawtax authority, repayment thereof shall not be required until actual refund or credit of such portion has been made to the Executive (which the Executive shall request, with the Company's assistance using the same procedure as set forth in paragraph (g) below) and interest payable to the Company shall not exceed interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expenses thereof) if the Executive's good faith claim for refund or credit is denied. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any interest payment the existence and 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 penalties additions payable by Executive with respect to such tax excess) at the time that the amount of such excess is finally determined. Notwithstanding the foregoing, no Gross-Up Payment shall be made with respect to any payments made pursuant to Section 8(d) hereunder by reason of termination of employment by Executive for the reasons specified in Section 8(e)(i) or (ii) hereof. (b) if (I) the quotient of (i) the Net After-Tax Amount with respect to the Contingent Payments paid or payable to Executive by the Company or any affiliate thereof divided by (ii) the Net After-Tax Cost (as such tax term is defined below) to the Company or taxesany affiliate thereof of providing such Contingent Payments (including the cost of the Gross-Up Payment) exceeds 33% or if (II) the quotient of (i) the increase in such Net After-Tax Amount (as such term is defined below) by reason of the amendment to Section 9 effected hereby divided by (ii) the increase in the Net After-Tax Cost to the Company or any affiliate thereof as a result of the amendment to Section 9 dated as of July 31, together with any such interest or penalties, being hereafter collectively 1995 exceeds 11% (the tests referred to in (I) and (II) above shall be referred to as the “Excise Tax”"Limitation Tests"), then then, in either event, the aggregate amount Gross-Up Payment provided in paragraph (a) above shall not be available and the provisions of Parachute Payments payable paragraph (c) below shall apply. The term "Net After-Tax Cost" shall mean the net cost to the Executive shall not exceed the amount which produces the greatest after-tax benefit Company and any affiliate thereof after giving effect to the Executive after Gross-Up Payment, if any, and all federal, state and local tax deductions which would be applicable to such payments, taking into account any Excise disallowance of deduction pursuant to Section 280G of the Code, assuming the Company is subject to income tax at the highest marginal applicable rates. The term "Net After-Tax to be payable by Amount" shall mean the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the net amount of Parachute the Contingent Payments otherwise payable and the Gross-up Payment after giving effect to all Executive Taxes which would be applicable to such payments, assuming all such payments were subject to income tax at the Executivehighest marginal applicable rates, if doing so would place net of the Executive maximum reduction in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect federal income taxes which could be obtained from deduction of such Parachute Payments). The state and local Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationTaxes.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion withexcise tax, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable any interest in respect of such Parachute penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(i)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute"). The Executive Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be binding, final and conclusive upon Employer and Employee, subject to reduction or elimination; providedin all respects, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any other planreasonable written request from Employee or Employer to Tax Counsel, arrangement or agreement governing upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the Executive’s rights case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and entitlements any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgments, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any benefits tax liability of Employee resulting from any Final Determination (as defined in Section 7(h)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or compensation.oral communication with respect to any question, adjustment, assessment or pending or threatened audit examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under

Excise Tax. If it is determined (by a) For purposes of this Subsection 2a(vi), the reasonable computation by an independent accounting following terms shall have the following meanings: (I) Payment shall mean any payment or consulting firm chosen distribution (or acceleration of benefits) by the Company to or for your benefit (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable (or accelerated) pursuant to the Executive under the terms of this Agreement or under otherwise). In addition, Payment shall mean the amount of income deemed to be received by you as a result of the acceleration of the exercisability of any other plan, program, policy, of your options to purchase stock of the Company or other arrangement, either alone the acceleration of the lapse of any restrictions on performance stock or in combination with other elements restricted stock of compensation and benefits paid the Company held by you or provided the acceleration of any payment from any deferral plan of the Company. (II) Excise Tax shall mean the excise tax imposed by Section 4999 of the Code. (b) In the event it shall be determined that the amount of any Payments payable to the Executive (including any you would constitute an “excess parachute payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments,” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute the Payments payable to the Executive you under this Agreement shall not exceed the amount which produces the greatest after-tax benefit be reduced (a “Reduction”) to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance extent necessary so that no portion of doubt, this provision will reduce the amount of Parachute such Payments otherwise payable to you is subject to the ExecutiveExcise Tax, but only if doing so the effect of such Reduction would be to place the Executive you in a better net after-tax economic position than you would have been in had no such Reduction been effected. In the event a Reduction is required, the payments to be reduced will be determined in a manner which has the least economic cost to you and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to you until the Reduction is achieved. (c) All determinations required to be made under this Subsection 2a(vi), including whether and when an Excise Tax or a Reduction is required and the amount of such Excise Tax or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting or actuarial consulting firm that is retained by the Company (the “Firm”) which shall provide detailed supporting calculations both to the Company and to you within fifteen (15) business days of the receipt of notice from you that there has been a Payment, or such earlier time as compared is requested by the Company (collectively, the “Determination”). In no event may the Firm retained by the Company be serving as accountant, auditor or consultant for the individual, entity or group affecting the Change in Control. All fees and expenses of the Firm shall be borne solely by the Company. If the Firm determines that no Excise Tax is payable by you, you may request the Firm to furnish you with not doing so (taking into account a written opinion that failure to report the Excise Tax payable on your applicable federal income tax return would not result in respect the imposition of such Parachute Payments)a negligence or similar penalty. The Executive Determination by the Firm shall be permitted to provide to binding upon the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable and you. 2. Subsection 2a(viii) is amended in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except its entirety as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.follows:

Excise Tax. If it is determined (by a) For purposes of this Subsection 2a(vi), the reasonable computation by an independent accounting following terms shall have the following meanings: (I) Payment shall mean any payment or consulting firm chosen distribution (or acceleration of benefits) by the Company to or for your benefit (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable (or accelerated) pursuant to the Executive under the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Subsection 2a(vi)). In addition, Payment shall mean the amount of income deemed to be received by you as a result of the acceleration of the exercisability of any other plan, program, policyof your options to purchase stock of the Company or the acceleration of the lapse of any restrictions on performance stock or restricted stock of the Company held by you or the acceleration of any payment from any deferral plan of the Company. (II) Excise Tax shall mean the excise tax imposed by Section 4999 of the Code, or any interest or penalties incurred by you with respect to such excise tax. (III) Income Tax shall mean all taxes other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to than the Executive Excise Tax (including any paymentinterest or penalties imposed with respect to such taxes) including, distributionwithout limitation, benefit or entitlement made any income and employment taxes imposed by any person federal (including (i) FICA and Medicare taxes, and (ii) the tax resulting from the loss of any federal deductions or entity effecting a Change in Controlexemptions which would have been available to you but for receipt of the Payment), in each casestate, local, commonwealth or foreign government. (b) In the event it shall be determined that could be considered the amount of the Payments payable to you would constitute an “excess parachute paymentspayment,” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance present value of doubt, this provision will reduce the amount of Parachute such Payments otherwise payable to the Executive, if doing so would place the Executive (calculated in a better net after-tax economic position as compared manner consistent with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentenceapplicable regulations promulgated under Section 280G of the Code) is equal to or less than 105% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to you under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to you is subject to the Excise Tax. In the event a Reduction is required, the payments to be reduced will be determined in a manner which has the least economic cost to you and, to the extent the economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to you until the Reduction is achieved. (c) In the event it shall be determined that the amount of the Payments payable to you is more than 105% greater than the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to you shall not be reduced in any notice given way and you shall be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that after payment by you of Income Tax and Excise Tax imposed upon the Gross-Up Payment, you retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment. (d) All determinations required to be made under this Subsection 2a(vi), including whether and when a Gross-Up Payment or a Reduction is required and the amount of such Gross-Up Payment or Reduction and the assumptions to be utilized in arriving at such determination, shall be made by the Executive public accounting or actuarial consulting firm that is retained by the Company (the “Firm”) which shall provide detailed supporting calculations both to the Company and to you within fifteen (15) business days of the receipt of notice from you that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). In no event may the Firm retained by the Company be serving as accountant, auditor or consultant for the individual, entity or group affecting the Change in Control. All fees and expenses of the Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Subsection 2a(vi), shall be paid by the preceding sentence shall take precedence over the provisions Company to you within thirty (30) days after your receipt of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.the

Excise Tax. (a) If it is determined (by pursuant to any of the reasonable computation by an independent accounting provisions of this Cancellation Agreement, if the aggregate amounts due ▇▇▇▇▇▇▇▇ under this Cancellation Agreement and any other plan or consulting firm chosen by program of the Company (the constitutes a “FirmParachute Payment”, as such term is defined in IRC Section 280(G), which determination shall be certified by the Firm and set forth in as a certificate delivered to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any result thereof there is an excise tax imposed by on ▇▇▇▇▇▇▇▇ pursuant to IRC Section 4999 of the Code (on all or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect part of such “Parachute Payments). The Executive shall be permitted to provide to Payment” received by ▇▇▇▇▇▇▇▇ from the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written noticeCompany, the Company shall reduce or eliminate reimburse ▇▇▇▇▇▇▇▇ for (i) such excise tax payment required to be paid by ▇▇▇▇▇▇▇▇ plus (ii) income taxes and additional excise taxes required to be paid by ▇▇▇▇▇▇▇▇ because of any reimbursement of excise and income taxes required to be paid by ▇▇▇▇▇▇▇▇ pursuant to clause (i) and this clause (ii) of this Section 11, all so that all excise taxes and income taxes on the Parachute Payments by first reducing or eliminating the portion amount of the reimbursement to ▇▇▇▇▇▇▇▇ for such excise taxes and income taxes required to be paid by ▇▇▇▇▇▇▇▇ on account of such “Parachute Payments that are payable Payment” and such reimbursements shall be borne by the Company and not by ▇▇▇▇▇▇▇▇. (b) Anything in cash and then by reducing or eliminating this Cancellation Agreement to the non-cash portion contrary notwithstanding if the aggregate of the amounts due ▇▇▇▇▇▇▇▇ under this Cancellation Agreement and any other plan or program of the Company constitutes a “Parachute PaymentsPayment” then, at ▇▇▇▇▇▇▇▇’▇ option, the payments to be made to ▇▇▇▇▇▇▇▇ under this Cancellation Agreement and under such other plan or program of the Company, shall be reduced to an amount which, when added to the aggregate of all other payments to ▇▇▇▇▇▇▇▇ will not make the total amount of such payments a “Parachute Payment”. If payments to ▇▇▇▇▇▇▇▇ included in each case determining whether ▇▇▇▇▇▇▇▇ is receiving an IRC 280(G) “Parachute Payment” include the value of the Warrants and other obligations of the Company hereunder and ▇▇▇▇▇▇▇▇ makes the election provided in reverse order beginning with payments or benefits this Section 11(b), then which items of payment are to be paid eliminated (cash, the furthest in time from Warrants or the date of the FirmCompany’s determination. Except as set forth in the preceding sentence, other obligations hereunder or any notice given combination thereof) shall be made by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation▇▇▇▇▇▇▇▇.

Excise Tax. If it is determined (a) In the event that any payment benefit or other entitlement received or to be received by the reasonable computation by an independent accounting or consulting firm chosen by you in connection with a Change of Control of the Company or the termination of your employment (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered whether payable pursuant to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, programarrangement or agreement with the Company, policyany person whose actions result in a Change of Control of the Company or any person affiliated with the Company or such person (the “Total Payments”, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided each a “Payment”)) would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto) or any similar tax imposed by corresponding provisions of state or local lawtax laws, or any interest or penalties are incurred by you with respect to such excise tax (such tax or taxesexcise tax, together with any such interest or and penalties, being hereafter is hereinafter collectively referred to as the “Excise Tax”), then you shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by you of all taxes (including, but not limited to, any income taxes, employment taxes, Excise Taxes and any interest or penalties imposed with respect to any such taxes) imposed upon the aggregate Gross-Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Those Payments that are subject to the Excise Tax shall be referred to herein as the “Parachute Payments”. Notwithstanding the foregoing provisions of this Section 11, if it shall be determined that you are entitled to a Gross-Up Payment, but that the portion of the Payments that would be treated as “parachute payments” under Section 280G of the Code does not exceed 105% of the greatest amount of Parachute Payments payable that could be paid or otherwise provided to you such that the Executive shall receipt of Parachute Payments would not exceed the amount which produces the greatest after-tax benefit give rise to the Executive after taking into account any Excise Tax (the “Safe Harbor Amount”) then no Gross-Up Payment shall be made to you and the amounts payable under this Agreement shall be reduced so that the total Parachute Payments are reduced to the Safe Harbor Amount. The reduction of the amounts payable or otherwise provided under this Agreement, if applicable, shall be made by first reducing the Parachute Payments under Section 9(a); unless an alternative method of reduction is elected by you. For purposes of reducing the total Parachute Payments to the Safe Harbor Amount, only Parachute Payments payable or otherwise provided under this Agreement (and no other Payments) shall be reduced. If the reduction of the amount payable or otherwise to be provided under this Agreement would not result in a reduction of the total Parachute Payments to the Safe Harbor Amount, no amounts payable or otherwise to be provided under this Agreement shall be reduced pursuant to this Section 11. The Company’s obligation to make Gross-Up Payments under this Section 11 shall not be conditioned upon your termination of employment. b) All determinations required to be made under this Section, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Executive as Company’s independent accountants (the “Accountants”) in consultation with you and your advisors. The Accountants shall provide detailed supporting calculations to you within fifteen (15) business days of the receipt of notice from you that there has been a Payment (or, if later, within fifteen (15) days of the date it is determined by the Firm upon discussion with, and reasonable approval byAccountants that the Payment is subject to the Excise Tax). In connection with any such calculations, the ExecutiveAccountants shall provide you with a written opinion explaining the basis for their conclusions with respect to the applicability or inapplicability of Section 4999 of the Code. For Any Gross-Up Payment, as determined pursuant to this Section, shall be paid by the avoidance Company to you within five days of doubtthe receipt of the Accountant’s determination. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments may not have been made by the Company that should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that either (A) the Company does not dispute that you are required to make a payment of Excise Tax or (B) the Company exhausts its remedies pursuant to Section 11 and you thereafter are required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for your benefit of. If (x) it is established pursuant to (I) a final determination of a court or (II) an Internal Revenue Service proceeding from either of which no appeal can be taken or (y) a written opinion is provided by independent counsel agreed upon by the parties that the Excise Tax is less than the amount taken into account under Section 11 of this provision will reduce Agreement, you shall repay to the Company within thirty (30) days of your receipt of notice of such final determination or opinion the portion of the Gross-Up Payment attributable to such reduction plus any interest received by you on the amount of Parachute Payments otherwise payable such repayment (after taxes applicable thereto.) c) You shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after you are informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the Executive, if doing so would place expiration of the Executive in a better net after30-tax economic position as compared with not doing so (taking into account day period following the Excise Tax payable in respect of date on which you give such Parachute Payments). The Executive shall be permitted to provide notice to the Company written notice specifying which (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Parachute Payments will be subject Company notifies you in writing prior to reduction or eliminationthe expiration of such period that it desires to contest such claim, you shall: i) give the Company any information reasonably requested by the Company relating to such claim, ii) take such action in connection with contesting such Claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, iii) cooperate with the Company in good faith in order effectively to contest such claim, and iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold you harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such written noticerepresentation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 11, the Company shall reduce control all proceedings taken in connection with such contest and, at its sole option, may pursue or eliminate forgo any and all administrative appeals, proceedings, hearings and conferences with the Parachute Payments taxing authority in respect of such claim and may, at its sole option, either direct you to pay the tax claimed and ▇▇▇ for a refund or contest the claim in any permissible manner, and you agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs you to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to you, on an interest-free basis, and shall indemnify and hold you harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for your taxable year with respect to which such contested amounts claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and you shall be entitled to settle or contest, as the case may be, any other issue raised by first reducing the Internal Revenue Service or eliminating any other taxing authority. d) If, after the receipt by you of an amount advanced by the Company pursuant to Section 11, you become entitled to receive any refund with respect to such claim, you shall (subject to the Company’s complying with the requirements of Section 11) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by you of an amount advanced by the Company pursuant to Section 11, a determination is made that you shall not be entitled to any refund with respect to such claim and the Company does not notify you in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. e) Notwithstanding any other provision of this Section 11, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for your benefit of, all or any portion of the Parachute Payments any Gross-Up Payment, and you hereby consent to such withholding; provided, that are payable such withholding shall in cash and then by reducing or eliminating the nonno event place you in a less favorable after-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationtax position.

Excise Tax. (a) If it is determined (by the reasonable computation by an independent accounting any payment or consulting firm chosen distribution by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount and/or any Affiliate of the paymentsCompany to or for Your benefit, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise pursuant to or by reason of any other plan, programagreement, policy, plan, program or other arrangement, either alone including without limitation any stock option, stock appreciation right or in combination with other elements similar right, or the lapse or termination of compensation and benefits paid any restriction on or provided the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or and penalties, being hereafter collectively referred to as the “Excise Tax”), then the aggregate amount of Parachute payments and benefits payable or provided under this Agreement (or other Payments payable to the Executive as described below) shall be reduced (but not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce below the amount of the payments or benefits provided under this Agreement) if, and only to the extent that, such reduction will allow You to receive a greater Net After Tax Amount than You would receive absent such reduction. (b) The Accounting Firm will first determine the amount of any Parachute Payments otherwise (as defined below), that are payable to You. The Accounting Firm also will determine the ExecutiveNet After Tax Amount (as defined below), if doing so would place attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the Executive in a better net after-tax economic position as compared with not doing so (taking into account largest amount of Payments that may be made to You without subjecting You to the Excise Tax payable in respect of (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the Capped Payments. (d) You then will receive the total Parachute Payments or the Capped Payments or such other amount less than the total Parachute Payments). The Executive shall , whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be permitted to provide to the Company written notice specifying which in excess of the amount of payments or benefits payable or provided under this Agreement. If You will receive the Capped Payments or some other amount lesser than the total Parachute Payments, the total Parachute Payments will be subject adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis and then by reducing the amount of any cash benefits under this Agreement or any other plan, agreement or arrangement on a pro rata basis. The Accounting Firm will notify You and the Company if it determines that the Parachute Payments must be reduced and will send You and the Company a copy of its detailed calculations supporting that determination. (e) As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time that the Accounting Firm makes its determinations under this Section 18, it is possible that amounts will have been paid or distributed to reduction You that should not have been paid or eliminationdistributed under this Section 18 (“Overpayments”), or that additional amounts should be paid or distributed to You under this Section 18 (“Underpayments”). If the Accounting Firm determines, based on either the assertion of a deficiency by the Internal Revenue Service against the Company or You, which assertion the Accounting Firm believes has a high probability of success or controlling precedent or substantial authority, that an Overpayment has been made, that Overpayment will be treated for all purposes as a debt ab initio that You must repay to the Company together with interest at the applicable Federal rate under Code Section 7872; provided, however, that no debt will be deemed to have been incurred by You and no amount will be payable by You to the Company unless, and then only to the extent that that, the Executive’s ability to exercise such authority deemed debt and payment would cause any Parachute Payment to become either reduce the amount on which You are subject to any tax under Code Section 409A Tax4999 or generate a refund of tax imposed under Code Section 4999. If the Accounting Firm determines, based upon controlling precedent or if substantial authority, that an Underpayment has occurred, the Executive does not provide Accounting Firm will notify You and the Company with any of that determination and the amount of that Underpayment will be paid to You by the Company promptly (and no later than thirty (30) days) after the final determination of the Underpayment, which is when Your legally binding right to such written noticeUnderpayment first arises. (f) For purposes of this Section 18, the Company following terms shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.have their respective meanings:

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (by the reasonable computation by an independent accounting or consulting firm chosen otherwise provided or to be provided) to Executive by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount or any of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive its affiliates under the terms of this Agreement or under any other plan, programprogram or arrangement under which Executive participates or is a party, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Controlthan amounts payable under this Section 10(d), in each case(collectively, that could be considered the “Payments”), would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the aggregate amount of Parachute the Payments payable to Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Executive shall not exceed be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount which produces of such Gross-Up Payment or Reduction and the greatest after-tax benefit assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any Excise Tax additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be payable by Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce or the amount of Parachute the Payments otherwise after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive under this Section 10(d) shall be permitted paid to provide to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise pay him such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the nonGross-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationUp Payment.

Excise Tax. (i) If it is determined that any amount, right or benefit paid or payable (by the reasonable computation by an independent accounting or consulting firm chosen otherwise provided or to be provided) to Executive by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount or any of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive its affiliates under the terms of this Agreement or under any other plan, programprogram or arrangement under which Executive participates or is a party, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Controlthan amounts payable under this Section 10(d), in each case(collectively, that could be considered the “Payments”), would constitute an “excess parachute paymentspayment” within the meaning of Section 280G of the Code (such paymentsCode, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code Code, as amended from time to time (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the aggregate amount of Parachute the Payments payable to Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Executive shall not exceed be entitled to receive an additional payment from the Company (a “Gross-Up Payment”) in an amount such that, after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (iii) All determinations required to be made under this Section 10(d), including whether and when a Gross-Up Payment or a Reduction is required, the amount which produces of such Gross-Up Payment or Reduction and the greatest after-tax benefit assumptions to be utilized in arriving at such determination, shall be made by an independent, nationally recognized accounting firm mutually acceptable to the Company and Executive (the “Auditor”); provided that in the event a Reduction is determined to be required, Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the Auditor shall be paid by the Company. Any Gross-Up Payment, as determined pursuant to this Section 10(d), shall be paid by the Company to Executive within five (5) days of the receipt of the Auditor’s determination. All determinations made by the Auditor shall be binding upon the Company and Executive; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any Excise Tax additional interest and penalties (the “Recalculated Amount”) and the Company shall pay to be payable by Executive the excess of the Recalculated Amount over the Gross-Up Payment initially paid to Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce or the amount of Parachute the Payments otherwise after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive under this Section 10(d) shall be permitted paid to provide him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment; provided, to the Company written notice specifying which extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1. 409A-1(b)(4), the Parachute Payments will payments and benefits payable to Executive under this Section 10(d) shall be subject to reduction or elimination; provided, however, that to the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject to any Safe Harbor and Postponement provided at Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are to be paid the furthest in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation8(c)(iv).

Excise Tax. If Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) determined that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person distribution to or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within for your benefit or the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 acceleration thereof would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provision theretothe “Code”) or any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (collectively, such tax or taxesexcise tax, together with any such interest or penalties, being hereafter collectively the “Excise Tax”) (all such payments and benefits, including any cash severance payments payable pursuant to any other plan, arrangement or agreement, hereinafter referred to as the “Excise TaxTotal Payments”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall first be reduced, and the noncash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax to be payable by but only if (i) the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the net amount of Parachute such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax payable to which you would be subject in respect of such Parachute unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that you may elect to have the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject noncash severance payments reduced (or eliminated) prior to any Section 409A reduction of the cash severance payments. You shall remain solely liable for all income taxes, Excise Tax, or if the Executive does not provide the Company with other amounts assessed on any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are and nothing in this Agreement shall be interpreted as obligating the Company, or any successors thereto, to be paid the furthest pay (or reimburse you for) any income taxes, Excise Tax, or other taxes or amounts assessed against or incurred by you in time from the date of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions connection with your receipt of any other plan, arrangement such payments or agreement governing the Executive’s rights and entitlements to any benefits or compensationbenefits.

Excise Tax. If it is determined In the event you become entitled to any amounts payable in connection with a Change in Control (by the reasonable computation by an independent accounting whether or consulting firm chosen by the Company not such amounts are payable pursuant to this Agreement) (the “FirmSeverance Payments”), which determination shall be certified by the Firm and set forth in a certificate delivered if any of such Severance Payments are subject to the Executive) that the aggregate amount of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive tax (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute PaymentsExcise Tax”) that, but for this Section 10 would be payable to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by federal, state or local lawtax that may hereafter be imposed), or any interest or penalties with respect the Company shall pay to such tax you at the time specified herein an additional amount (such tax or taxes, together with any such interest or penalties, being hereafter collectively referred to as the “Excise TaxGross-Up Payment”)) such that the net amount retained by you, then the aggregate amount after deduction of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 3(c), shall be equal to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the ExecutiveTotal Payments. For the avoidance purposes of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Severance Payments will be subject to reduction or elimination; provided, however, that to the extent that Excise Tax and the Executive’s ability to exercise amount of such authority would cause Excise Tax: (i) any Parachute Payment to become subject to any Section 409A Tax, or if the Executive does not provide the Company with any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are received or to be paid the furthest received by you in time from the date connection with a Change in Control or your termination of the Firm’s determination. Except as set forth in the preceding sentence, any notice given by the Executive employment (whether pursuant to the preceding sentence shall take precedence over the provisions terms of this Agreement or any other plan, arrangement or agreement governing with the Executive’s rights Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the “Total Payments”) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and entitlements all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and (iii) the value of any non-cash benefits or any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of your employment, you shall repay to the Company within ten days after 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 you if such repayment results in a reduction in Excise Tax and/or federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your 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 ten days after the time that the amount of such excess is finally determined. The payments provided for in this Section 3(c) shall be made on the fifteenth day following your Date of Termination; provided, however, that if the amount of such payments cannot be finally determined on or before such day, the Company shall pay you on such day an estimate, as determined in good faith by the Company, 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 administratively practicable in compliance with Section 409A of the Code and the proposed and final Treasury Regulations thereunder, as the same may be amended from time to time (the “Regulations”) but in no event later than the thirtieth day after your Date of Termination subject, however, to any delay in the payment date as a result of Section 3(d) of this Agreement (relating to the six-month delay in payment of certain benefits or compensationto Specified Employees as required by Section 409A of the Code). In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to you, payable on the fifteenth day after the demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code).

Excise Tax. If it is determined (a) Whether or not the Executive becomes entitled to any payments hereunder, if any of the payments or benefits received or to be received by the reasonable computation by an independent accounting Executive in connection with a Change in Control or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount 's termination of the payments, distributions, benefits and entitlements of any type paid or provided employment pursuant to the Executive under the terms of this Agreement or under any other planthe Stock Option Plan (all such payments and benefits, programexcluding the Gross-Up Payment, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided being hereinafter referred to as the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could "Total Payments") will be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute Payments”) that, but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local lawCode, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax or taxes, together with any such interest or penalties, being hereafter and penalties are hereinafter collectively referred to as the “"Excise Tax”"), then the aggregate amount of Parachute Payments payable Company shall pay to the Executive shall not exceed an additional amount (the "Gross-Up Payment") such that the net amount which produces retained by the greatest after-tax benefit to the Executive Executive, after taking into account deduction of any Excise Tax to on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable equal to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so Total Payments. (taking into account the Excise Tax payable in respect b) For purposes of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which determining whether any of the Parachute Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (I) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") selected by the Company and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, and (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 11), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (c) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the 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 and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined, in accordance with the procedures set forth in Section 11(d) below, to exceed the amount taken into account hereunder in calculating the Gross-Up Payment, in accordance with the procedures set forth in Section 11(d) below. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or eliminationjudicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (d) Executive shall notify the Company in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by the Company of an additional Gross-Up Payment. Such notification shall be given as soon as practicable but no later than thirty (30) calendar days after Executive actually receives notice in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid; provided, however, that the failure of Executive to notify the Company of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to the Executive under this Section except to the extent that the Company is materially prejudiced in the defense of such claim as a direct result of such failure. Executive shall not, unless otherwise required by the Internal Revenue Service, pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such 30-day period that it desires to contest such claim, the Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim; (2) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to Executive’s ability ; (3) cooperate with the Company in good faith in order effectively to exercise contest such authority would cause any Parachute Payment to become subject to any Section 409A Tax, or claim; and (4) if the Executive does Company elects not provide to assume and control the defense of such claim, permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any additional Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such written noticerepresentation and payment of costs and expenses, without, however, any duplication of the previously paid Gross-Up Payments. Without limiting the foregoing provisions of this paragraph, the Company shall reduce have the right, at its sole option, to assume the defense of and control all proceedings in connection with such contest, in which case it may pursue or eliminate forego any and all administrative appeals, proceedings, hearings and conferences with the Parachute Payments by first reducing taxing authority in respect of such claim and may either direct the Executive to pay the tax claimed and ▇▇▇ for a refund or eliminating contest the portion claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and ▇▇▇ for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any additional Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance, without, however, any duplication of the Parachute Payments previously paid Gross-Up Payments; and provided, further, that are payable in cash and then by reducing or eliminating the non-cash portion any extension of the Parachute Paymentsstatute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's right to assume the defense of and control the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (e) The payments provided in this Section 11 shall be made not later than the fifth (5th) day following the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-up Payment is calculated for purposes of this Section 11); provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, in each case in reverse order beginning accordance with payments or benefits which are to be paid the furthest in time from the date this Section 11, of the Firm’s determinationminimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder (or on all such payments to the extent the Company fails to make such payments when due) at 120% of the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. Except as set forth in In the preceding sentenceevent that the amount of the estimated payments exceeds the amount subsequently determined to have been due, any notice given such excess shall constitute a loan by the Executive pursuant Company to the preceding sentence Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at 120% of the rate provided in section 1274(b)(2)(B) of the Code). (f) The Company agrees promptly to submit this Agreement to the stockholders of the Company for their approval in accordance with Section 280G Prop. Reg. Section 1.280G-1 Q/A7, and if such approval is not obtained by February 28, 2001, this Agreement shall take precedence over the provisions become null and void as of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensationsuch date.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the distributions or benefits being individually referred to herein as a “Parachute Payment,” and any two or more of such payments, distributions or benefits being referred to herein as “Payments”) that), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or such excise tax, together with any successor provision thereto) or interest thereon, any similar tax imposed by state or local lawpenalties, additions to tax, or any interest or penalties additional amounts with respect to such tax (excise tax, and any interest in respect of such penalties, additions to tax or taxes, together with any such interest or penaltiesadditional amounts, being hereafter collectively referred herein to as the “Excise Tax”), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a “Gross-Up Payment” and any two or more of such additional payments being referred to herein as “Gross-Up Payments”) in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the aggregate Gross-Up Payment, Employee retains an amount of Parachute Payments payable such Gross-Up Payment equal to the Executive Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a “Determination”) required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer’s expense, by nationally recognized tax counsel selected by Employer (“Tax Counsel”). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee’s employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a “Dispute”) within 15 business days after delivery of Tax Counsel’s opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer’s expense, be paid by Employer to or for the benefit of Employee within five business days of Employee’s receipt of such Determination. The existence of a Dispute shall not exceed in any way affect Employee’s right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made (“Underpayment”), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel’s own initiative, Tax Counsel, at Employer’s expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any additional Excise Tax, as the case may be, Tax Counsel shall, at Employer’s expense, determine the amount which produces of the greatest Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys’, accountants’, and experts’ fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 (“Claim”), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim (“Tax Claim Notice”). (e) If a Claim is asserted against Employee (“Employee Claim”), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing (“Election Notice”) that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer’s sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer’s request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), ▇▇▇ for a refund of such tax if such claim for refund is disallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to ▇▇▇ for a refund and Employer shall not be entitled to initiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax benefit basis, from any tax imposed as a result of such reimbursement. (f) Subject to the Executive after taking into account any Excise Tax provisions of Section 7(e) hereof, Employer shall have the right to be payable defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by the Executive as determined by the Firm upon discussion withall appropriate proceedings, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive which proceedings shall be permitted defended or prosecuted diligently by Employer to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or eliminationa Final Determination; provided, however, that (i) Employer shall not, without Employee’s prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer’s control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee’s expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax claimed (pursuant to an Employee Claim) that has been advanced by Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or cause to be paid to Employer any refund actually received by, or actually credited to, Employee with respect to such tax (together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such taxing authority related thereto), except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(1) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term “Final Determination” shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.

Excise Tax. (a) If it both Parent and PGI are not an entity whose stock is determined readily tradable on an established securities market (or otherwise) at the time that a “change of control” under Regulation 1.280G occurs following the Effective Date, Executive, Parent, and PGI shall use their respective best efforts to avoid the imposition of the excise tax imposed by Section 4999 of the reasonable computation by an independent accounting or consulting firm chosen by the Company Internal Revenue Code of 1986, as amended (the “FirmCode”), which determination shall be certified by the Firm and set forth in ) or a certificate delivered to the Executive) that the aggregate amount loss of the payments, distributions, benefits and entitlements of any type paid or provided to the Executive deductibility under the terms of this Agreement or under any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code Code, including, to the extent Executive agrees to waive Executive’s entitlement to potential “parachute payments” (such paymentsas defined under Regulation 1.280G), Parent or PGI shall seek to obtain stockholder approval thereof in accordance with the terms of Section 280G(b)(5) of the Code. (b) If PGI or Parent is an entity whose stock is readily tradable on an established securities market (or otherwise) at the time that a “Parachute Payments”) thatchange in control” under Regulation 1.280G occurs following the Effective Date, but then anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, benefit or distribution to or for this Section 10 Executive’s benefit or the acceleration thereof would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax (collectively, such tax or taxesexcise tax, together with any such interest or penalties, being hereafter collectively the “Excise Tax”) (all such payments and benefits, including any cash severance payments payable pursuant to any other plan, arrangement or agreement, hereinafter referred to as the “Excise TaxTotal Payments”), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive then, after taking into account any reduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall first be reduced, and the noncash severance payments shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax to be payable by but only if (i) the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the net amount of Parachute such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax payable to which Executive would be subject in respect of such Parachute unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that Executive may elect to have the extent that the Executive’s ability to exercise such authority would cause any Parachute Payment to become subject noncash severance payments reduced (or eliminated) prior to any Section 409A reduction of the cash severance payments. Executive shall remain 075759-0006-13471-Active.14024570.4 solely liable for all income taxes, Excise Tax, or if the Executive does not provide the Company with other amounts assessed on any such written notice, the Company shall reduce or eliminate the Parachute Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with payments or benefits which are and nothing in this Agreement shall be interpreted as obligating the PGI, or any successors thereto, to be paid the furthest pay (or reimburse Executive for) any income taxes, Excise Tax, or other taxes or amounts assessed against or incurred by Executive in time from the date of the Firmconnection with Executive’s determination. Except as set forth in the preceding sentence, any notice given by the Executive pursuant to the preceding sentence shall take precedence over the provisions receipt of any other plan, arrangement such payments or agreement governing the Executive’s rights and entitlements to any benefits or compensationbenefits.

Excise Tax. If (a) Anything in this Agreement to the contrary notwithstanding, in the event it is determined (by the reasonable computation by an independent accounting or consulting firm chosen by the Company (the “Firm”), which determination shall be certified by determined that any payment or distribution by, or benefit from, Employer or any of its affiliates to or for the Firm and set forth in a certificate delivered to the Executive) that the aggregate amount benefit of the paymentsEmployee, distributions, benefits and entitlements of any type whether paid or provided payable or distributed or distributable pursuant to the Executive under the terms of this Agreement or under otherwise (any other plan, program, policy, or other arrangement, either alone or in combination with other elements of compensation and benefits paid or provided to the Executive (including any payment, distribution, benefit or entitlement made by any person or entity effecting a Change in Control), in each case, that could be considered “parachute payments” within the meaning of Section 280G of the Code (such payments, the “Parachute distributions or benefits being individually referred to herein as a "Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments”) that"), but for this Section 10 would be payable subject to the Executive, exceeds the greatest amount of Parachute Payments that could be paid to the Executive without giving rise to any liability for any excise tax imposed by Section 4999 of the Code (such excise tax, together with any interest thereon, any penalties, additions to tax, or additional amounts with respect to such excise tax, and any interest in respect of such penalties, additions to tax or additional amounts, being collectively referred herein to as the "Excise Tax"), then Employee shall be entitled to receive an additional payment or payments (individually referred to herein as a "Gross-Up Payment" and any two or more of such additional payments being referred to herein as "Gross-Up Payments") in an amount such that after payment by Employee of all taxes (as defined in Section 7(k)) imposed upon the Gross-Up Payment, Employee retains an amount of such Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 7(c) through (i), any determination (individually, a "Determination") required to be made under this Section 7(b), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax Counsel"). Tax Counsel shall provide detailed supporting legal authorities, calculations, and documentation both to Employer and Employee within 15 business days of the termination of Employee's employment, if applicable, or such other time or times as is reasonably requested by Employer or Employee. If Tax Counsel makes the initial Determination that no Excise Tax is payable by Employee with respect to a Payment or Payments, it shall furnish Employee with an opinion reasonably acceptable to Employee that no Excise Tax will be imposed with respect to any such Payment or Payments. Employee shall have the right to dispute any Determination (a "Dispute") within 15 business days after delivery of Tax Counsel's opinion with respect to such Determination. The Gross-Up Payment, if any, as determined pursuant to such Determination shall, at Employer's expense, be paid by Employer to or for the benefit of Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in any way affect Employee's right to receive the Gross-Up Payment in accordance with such Determination. If there is no Dispute, such Determination shall be binding, final and conclusive upon Employer and Employee, subject in all respects, however, to the provisions of Section 7(c) through (i) below. As a result of the uncertainty in the application of Sections 4999 and 280G of the Code, it is possible that Gross-Up Payments (or portions thereof) which will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from Employee or Employer to Tax Counsel, or upon Tax Counsel's own initiative, Tax Counsel, at Employer's expense, thereafter determines that Employee is required to make a payment of any Excise Tax or any successor provision theretoadditional Excise Tax, as the case may be, Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Employer to or for the benefit of Employee. (c) Employer shall defend, hold harmless, and indemnify Employee on a fully grossed-up after tax basis from and against any and all claims, losses, liabilities, obligations, damages, impositions, assessments, demands, judgements, settlements, costs and expenses (including reasonable attorneys', accountants', and experts' fees and expenses) with respect to any tax liability of Employee resulting from any Final Determination (as defined in Section 7(j)) that any Payment is subject to the Excise Tax. (d) If a party hereto receives any written or oral communication with respect to any question, adjustment, assessment or pending or threatened audit, examination, investigation or administrative, court or other proceeding which, if pursued successfully, could result in or give rise to a claim by Employee against Employer under this Section 7 ("Claim"), including, but not limited to, a claim for indemnification of Employee by Employer under Section 7(c), then such party shall promptly notify the other party hereto in writing of such Claim ("Tax Claim Notice"). (e) If a Claim is asserted against Employee ("Employee Claim"), Employee shall take or cause to be taken such action in connection with contesting such Employee Claim as Employer shall reasonably request in writing from time to time, including the retention of counsel and experts as are reasonably designated by Employer (it being understood and agreed by the parties hereto that the terms of any such retention shall expressly provide that Employer shall be solely responsible for the payment of any and all fees and disbursements of such counsel and any experts) and the execution of powers of attorney, provided that: (1) within 30 calendar days after Employer receives or delivers, as the case may be, the Tax Claim Notice relating to such Employee Claim (or such earlier date that any payment of the taxes claimed is due from Employee, but in no event sooner than five calendar days after Employer receives or delivers such Tax Claim Notice), Employer shall have notified Employee in writing ("Election Notice") that Employer does not dispute its obligations (including, but not limited to, its indemnity obligations) under this Agreement and that Employer elects to contest, and to control the defense or prosecution of, such Employee Claim at Employer's sole risk and sole cost and expense; and (2) Employer shall have advanced to Employee on an interest-free basis, the total amount of the tax claimed in order for Employee, at Employer's request, to pay or cause to be paid the tax claimed, file a claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), sue for a refund of such tax if such claim for refund i▇ ▇isallowed by the appropriate taxing authority (it being understood and agreed by the parties hereto that Employer shall only be entitled to sue for a refund and Employer shall not be entitled to ▇▇▇tiate any proceeding in, for example, United States Tax Court) and shall indemnify and hold Employee harmless, on a fully grossed-up after tax basis, from any tax imposed with respect to such advance or with respect to any imputed income with respect to such advance; and (3) Employer shall reimburse Employee for any and all costs and expenses resulting from any such request by Employer and shall indemnify and hold Employee harmless, on fully grossed-up after-tax basis, from any tax imposed as a result of such reimbursement. (f) Subject to the provisions of Section 7(e) hereof, Employer shall have the right to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim by all appropriate proceedings, which proceedings shall be defended or prosecuted diligently by Employer to a Final Determination; provided, however, that (i) Employer shall not, without Employee's prior written consent, enter into any compromise or settlement of such Employee Claim that would adversely affect Employee, (ii) any request from Employer to Employee regarding any extension of the statute of limitations relating to assessment, payment, or collection of taxes for the taxable year of Employee with respect to which the contested issues involved in, and amount of, Employee Claim relate is limited solely to such contested issues and amount, and (iii) Employer's control of any contest or proceeding shall be limited to issues with respect to Employee Claim and Employee shall be entitled to settle or contest, in his sole and absolute discretion, any other issue raised by the Internal Revenue Service or any similar other taxing authority. So long as Employer is diligently defending or prosecuting such Employee Claim, Employee shall provide or cause to be provided to Employer any information reasonably requested by Employer that relates to such Employee Claim, and shall otherwise cooperate with Employer and its representatives in good faith in order to contest effectively such Employee Claim. Employer shall keep Employee informed of all developments and events relating to any such Employee Claim (including, without limitation, providing to Employee copies of all written materials pertaining to any such Employee Claim), and Employee or his authorized representatives shall be entitled, at Employee's expense, to participate in all conferences, meetings and proceedings relating to any such Employee Claim. (g) If, after actual receipt by Employee of an amount of a tax imposed claimed (pursuant to an Employee Claim) that has been advanced by state Employer pursuant to Section 7(e)(2) hereof, the extent of the liability of Employer hereunder with respect to such tax claimed has been established by a Final Determination, Employee shall promptly pay or local lawcause to be paid to Employer any refund actually received by, or any interest or penalties actually credited to, Employee with respect to such tax (such tax or taxes, together with any interest paid or credited thereon by the taxing authority and any recovery of legal fees from such interest or penalties, being hereafter collectively referred to as the “Excise Tax”taxing authority related thereto), then the aggregate amount of Parachute Payments payable to the Executive shall not exceed the amount which produces the greatest after-tax benefit to the Executive after taking into account any Excise Tax to be payable by the Executive as determined by the Firm upon discussion with, and reasonable approval by, the Executive. For the avoidance of doubt, this provision will reduce the amount of Parachute Payments otherwise payable to the Executive, if doing so would place the Executive in a better net after-tax economic position as compared with not doing so (taking into account the Excise Tax payable in respect of such Parachute Payments). The Executive shall be permitted to provide to the Company written notice specifying which of the Parachute Payments will be subject to reduction or elimination; provided, however, that except to the extent that any amounts are then due and payable by Employer to Employee, whether under the Executive’s ability provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to exercise such Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority would cause any Parachute Payment to become subject that Employee shall not be entitled to any Section 409A Tax, or if the Executive refund with respect to such tax claimed and Employer does not provide notify Employee in writing of its intent to contest such denial of refund prior to the Company with any expiration of 30 days after such written noticedetermination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the Company shall reduce or eliminate the Parachute amount of any Gross-Up Payments by first reducing or eliminating the portion of the Parachute Payments that are payable in cash and then by reducing or eliminating the non-cash portion of the Parachute Payments, in each case in reverse order beginning with other payments or benefits which are required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the furthest period provided in Section 7(e)(1) hereof or, after delivery of such Election Notice, Employer fails to comply with the provisions of Section 7(e)(2) and (3) and (f) hereof, then Employee shall at any time thereafter have the right (but not the obligation), at his election and in his sole and absolute discretion, to defend or prosecute, at the sole cost, expense and risk of Employer, such Employee Claim. Employee shall have full control of such defense or prosecution and such proceedings, including any settlement or compromise thereof. If requested by Employee, Employer shall cooperate, and shall cause its Affiliates to cooperate, in good faith with Employee and his authorized representatives in order to contest effectively such Employee Claim. Employer may attend, but not participate in or control, any defense, prosecution, settlement or compromise of any Employee Claim controlled by Employee pursuant to this Section 7(h) and shall bear its own costs and expenses with respect thereto. In the case of any Employee Claim that is defended or prosecuted by Employee, Employee shall, from time to time, be entitled to current payment, on a fully grossed-up after tax basis, from Employer with respect to costs and expenses incurred by Employee in connection with such defense or prosecution. (i) In the date case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the Firm’s determinationterms of this Section 7(i), Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any taxes arising or resulting from or incurred in connection with such Employee Claim that have not theretofore been paid by Employer to Employee, together with the costs and expenses, on a fully grossed-up after tax basis, incurred in connection therewith that have not theretofore been paid by Employer to Employee, within ten calendar days after such Final Determination. Except as set forth in In the case of any Employee Claim not covered by the preceding sentence, Employer shall pay, on a fully grossed-up after tax basis, to Employee in immediately available funds the full amount of any notice given by taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the Executive pursuant to the preceding sentence shall take precedence over date payment of such taxes is due from Employee, except where payment of such taxes is sooner required under the provisions of this Section 7(i), in which case payment of such taxes (and payment, on a fully grossed-up after tax basis, of any costs and expenses required to be paid under this Section 7(i) shall be made within the time and in the manner otherwise provided in this Section 7(i). (j) For purposes of this Agreement, the term "Final Determination" shall mean (A) a decision, judgment, decree or other planorder by a court or other tribunal with appropriate jurisdiction, arrangement which has become final and non-appealable; (B) a final and binding settlement or compromise with an administrative agency with appropriate jurisdiction, including, but not limited to, a closing agreement governing under Section 7121 of the Executive’s rights and entitlements Code; (C) any disallowance of a claim for refund or credit in respect to an overpayment of tax unless a suit is filed on a timely basis; or (D) any benefits or compensationfinal disposition by reason of the expiration of all applicable statutes of limitations.