Common use of Excise Tax Clause in Contracts

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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 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, 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. In If it is determined (by the event you become entitled 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 amounts payable hereunder or liability for any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision thereto) or any similar federal, tax imposed by state or local law, or any interest or penalties with respect to such tax that may (such tax or taxes, together with any such interest or penalties, being hereafter be imposedcollectively referred to as the “Excise Tax”), then the Company aggregate amount of Parachute Payments payable to the Executive shall pay not exceed the amount which produces the greatest after-tax benefit 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, Executive after deduction of taking into account any Excise Tax on to be payable by the Total 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 (as hereinafter defined) and any federal, state and local income tax and taking into account the Excise Tax upon the payment provided for by this Section 6, payable in respect of such Parachute Payments). The Executive shall be equal permitted to provide to the Total Payments. For purposes of determining whether any Company written notice specifying which of the Severance Parachute Payments will be subject to reduction or elimination; provided, however, that to the Excise Tax 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 amount non-cash portion of such Excise Tax: (i) any other the Parachute Payments, in each case in reverse order beginning with payments or benefits received or which are to be received 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 you in connection with a Change in Control or your termination of employment (whether the Executive pursuant to the terms preceding sentence shall take precedence over the provisions of this Agreement or any other plan, arrangement or agreement with governing the Company, Executive’s rights and entitlements to 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 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 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, 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 determinedcompensation.

Excise Tax. In the event you become entitled it shall be determined that any payment, benefit, or distribution by the Firm to any amounts payable hereunder or any other amounts in connection with a change in control for the benefit of the Executive (whether paid or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state distributed or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any other plan, arrangement or agreement with additional payments required under this paragraph) (a “Payment”) would be subject to the Company, any Person whose actions result in a Change in Control excise tax imposed by Section 4999 of the Code or any Person affiliated interest or penalties are incurred by the Executive with the Company or respect to such Person) excise tax (whichsuch excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Severance Payments“Excise Tax”), constitute then the "Total Payments") Executive shall be treated as "parachute payments" within entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by the meaning 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 280G(b)(2) 409A 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 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 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 Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. The Firm’s obligation to make Gross-Up Payments 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, you or such earlier time as is requested by Lazard. All fees and expenses of the Accounting Firm shall be deemed borne solely by the Firm. Any Gross-Up Payment shall be paid by the Firm to pay federal income taxes the Executive within five days of the later of (i) the due date for the payment of any Excise Tax, and (ii) the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Firm and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the highest marginal rate time of federal 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 Firm to the Executive within five (5) days of the receipt of the Accounting Firm’s determination; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income taxation or other related taxes or interest or penalties thereon) on a Payment is remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim from the Internal Revenue Service or another 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 Gross-Up Payment 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 be made and state and local income taxes at the highest marginal rate of taxation in Internal Revenue Service or any other applicable taxing authority, for the state and locality of your residence, net benefit 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 hereunderExecutive, 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 all or any 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), and the Company shall make an additional gross-up payment in respect of Executive hereby consents to such excess) within ten days after the time that the amount of such excess is finally determinedwithholding.

Excise Tax. In (a) If 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 event you become entitled continuation of fringe and other benefits) to any amounts payable the Employee hereunder or any other amounts in connection with a change in control payments received or to be received by the Employee from any Regency Entity or any successor thereto (collectively, "Payments") (whether payable upon termination of employment or not such amounts are otherwise and whether payable pursuant to this Agreementthe terms hereof or any other plan, agreement or arrangement with any Regency Entity) would, in the opinion of Tax Counsel (as defined in Section 5(c)) constitute a "parachute payment" under Section 280G of the "Severance Payments")Code, or if it is ultimately determined by a court or pursuant to a final determination by the Internal Revenue Service that any portion of such Severance the Payments are is subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federalCode, state or local tax that may hereafter be imposedthen, except as provided in the last sentence of this Section 5(a), the Company shall pay to you at the time specified in Section 7 hereof Employee within fifteen days after such determination an additional amount (the "Gross-Up Payment") such that the net amount retained by you, the Employee after deduction of (i) any Excise Tax on the Total Payments Tax; (as hereinafter definedii) and any federal, state and or local income tax and arising in respect 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 65(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 Total Payments. For purposes of determining whether any of Notwithstanding the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax: (i) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other planforegoing, arrangement or agreement with the 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 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) if the amount of the Total Payments which shall does not exceed by more than $25,000.00 the amount that would be treated as subject payable to the Excise Tax shall be equal Employee if the Payments were reduced to the lesser of (A) the total amount of the Total Payments and (B) the amount of excess one dollar less than what would constitute a "parachute payments within the meaning of payment" under Section 280G(b)(1) 280G of the Code (after applying Section 6(i) hereofthe "Scaled Back Amount"); and (iii) , then the value of any non-cash benefits or any deferred payments or benefit Payments shall be determined by a nationally-recognized accounting firm selected by you in accordance with reduced to the principles of Sections 280G(d)(3) Scaled Back Amount, and (4) of the Code. For purposes of determining the amount of the Employee shall not be entitled to any Gross-Up Payment. (b) For purposes of this Section 5, you the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation tax rates in the calendar year in which the Gross-Up Payment such payment is to be made and any state and or local income taxes at the highest marginal rate of taxation rates applicable in the state and locality of your residence, net of the Employee's domicile for income tax purposes in the calendar year in which such payment is made hereunder and assuming the maximum reduction in available deduction from income for federal income taxes which could be obtained from deduction purposes of any such state and or local income taxes. In . (c) For purposes of Section 5(a), within 60 days after delivery of a written notice of termination by the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall repay to Employee or by the Company within ten pursuant to this Agreement (or, if an event other than termination of employment results in payment of parachute payments under Section 280G and it is reasonably possible that such parachute payments could result in an Excise Tax, with 60 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 Paymentother event), the Company shall make an additional gross-up payment obtain, at its expense, the opinion (which need not be unqualified) of nationally recognized tax counsel ("Tax Counsel") selected by the Company's independent auditors, which sets forth (i) the "base amount" within the meaning of Section 280G; (ii) the aggregate present value of the payments in respect the nature of compensation to the Employee as prescribed in Section 280G(b)(2)(A)(ii); and (iii) the amount and present value of any "excess parachute payment" within the meaning of Section 280G(b)(1). For purposes of such excess) within ten days after opinion, the time that value of any non-cash benefits or any deferred payment or benefit shall be determined by the amount 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 excess is finally determinedauditors addressed to the Company and the Employee. Such opinion shall be addressed to the Company and the Employee and shall be binding upon the Company and the Employee.

Excise Tax. In (i) Notwithstanding anything to the contrary set forth in this Agreement, in no event you become entitled to any amounts payable hereunder or any other amounts in connection with shall a change in control (whether or not such amounts are Severance Payment payable pursuant to this AgreementSection 3 exceed an amount equal to the lesser of (i) 2.99 times the "base amount" (as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Severance PaymentsCODE")) of Employee's compensation, if or (ii) such other amount which would constitute an "excess parachute payment" (as defined in Section 280G of the Code). In the event that it shall be determined that any of such Severance Payments are Payment to Employee (whether paid or payable or distributed or distributable) would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (Code, or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 hereof an additional amount successor provision thereto (the "GrossEXCISE TAX"), then Employee shall be entitled to receive from Employer an additional payment (the "GROSS-Up PaymentUP PAYMENT") in an amount such that the net amount of the Severance Payment and the Gross-Up Payment retained by you, Employee after the calculation and deduction of all Excise Taxes (including any Excise Tax interest or penalties imposed with respect to such taxes) on the Total Payments (as hereinafter defined) payment and any federalall Federal, state and local income tax, employment tax and Excise Tax upon (including any interest or penalties imposed with respect to such taxes) on the payment Gross-Up Payment provided for by in this Section 6, shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 CodeSection, 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 nationally-recognized taking into account any lost or reduced 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 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 deductions on account of the Gross-Up Payment, you shall be deemed equal to pay federal income taxes at the highest marginal rate Severance Payment. In the event Employer exhausts its remedies pursuant to this Section and Employee is required to make a payment of federal income taxation in the calendar year in which any Excise Tax, the Gross-Up Payment is shall be promptly paid by Employer to be made and state and local income taxes at the highest marginal rate of taxation or for Employee's benefit. (ii) Employee shall notify Employer 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 writing of any claim by the Internal Revenue Service that, if successful, would require the payment the existence or amount of which cannot be determined at the time 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 claim is due). If Employer notifies Employee in writing prior to the expiration of such 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 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 Employer; (C) cooperate with Employer in good faith in order to effectively 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 Company foregoing provisions of this section, Employer shall make an additional gross-up payment 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 excess) within ten days after claim and may, at its sole option, either direct Employee to pay the time tax claimed and xxx for a refund or contest the claim in any permissible manner, and Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; provided, however, that if Employer directs Employee to pay such claim and xxx for a refund, Employer shall advance the amount of such excess 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 payment of taxes for the taxable year of Employee with respect to which such contested amount is finally determinedclaimed to be due is limited solely to such contested amount. Furthermore, Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

Excise Tax. The present value (as defined herein) of the liquidated damages payable to the Employee under Section 3 hereof, and any other payments otherwise payable to the Employee by Norstan on or after a Change in Control, as defined in 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 you become entitled that the present value of such payments equals or exceeds such amount, the provisions set forth in this Section 4 will apply, and liquidated damages or other severance benefits payable to the Employee under this Agreement will be made only in accordance with this Section 4 notwithstanding any amounts payable hereunder or any other amounts provision to the contrary in connection this Agreement. (A) Not later than thirty days after the Date of Termination, the Corporation will provide the Employee with a change in control (whether or not such amounts are schedule indicating by category the present value of the liquidated damages payable pursuant to the Employee under this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject all other benefits payable to the tax Employee under this Agreement (specifying the "Excise Tax") imposed by Section 4999 of the Code (paragraph, subparagraph or any similar federal, state or local tax that may hereafter clause under which each such payment is to be imposed), the 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 any Excise Tax on the Total Payments (as hereinafter definedmade) and any federalother payments otherwise payable to the Employee by Norstan on or after the Change in Control, state and local income tax and Excise Tax upon which, in the payment provided for by Corporation’s opinion, constitute parachute payments under Section 280G of the Code. No payments under this Section 6, Agreement shall be equal made until after thirty days from the receipt of such schedule by the Employee. At any time prior to the Total Payments. For purposes expiration of determining whether said thirty-day period, the Employee shall have the right to select from all or part of any category of the Severance Payments will payment to be subject made under this Agreement those payments to be made to the Excise Tax and Employee in an amount the amount present value of such Excise Tax: which (i) when combined with the present value of any other payments or benefits received or otherwise payable to the Employee by Norstan that 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 received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 "an excess parachute payments" within the meaning of payment under Section 280G(b)(2) 280G of the Code, and all "excess parachute payments" within by interest from the meaning Date of Termination to the date of payment at the Federal short-term rate, compounded annually, promulgated under Section 280G(b)(11274(d) of the Code as effective for the month in which the Date of Termination occurs) shall be treated as subject made to the Excise Tax, unless in Employee on 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 day after the meaning of Section 280G(b)(4) expiration of the Code in excess period extending thirty days from his/her receipt of the base amount within the meaning schedule provided for hereunder, and no other liquidated damages or other benefits under Section 3 of Section 280G(b)(3) of the Code, or are otherwise not subject this Agreement shall be paid 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 Employee. (B) If the Corporation fails to supply the schedule within thirty days of the 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 excess parachute payments within liquidated damages and other benefits under this Agreement, without regard to this Section 4. (C) If the meaning 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 280G(b)(14(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 Code Employee’s fifteen day period. (after applying D) For purposes of this Section 6(i) hereof); and (iii) 4, “present value” means 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) Section 280 of the Code. For purposes of determining , and the amount regulations promulgated under Section 280G of the Gross-Up PaymentCode, you shall be deemed and “base amount” means the annualized includible compensation for the base period payable to pay federal income taxes at the highest marginal rate Employee by the Corporation or any subsidiary of federal income taxation the Corporation and includible in the calendar year 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 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 Employee was an employee of the maximum reduction in federal income taxes which could be obtained from deduction Corporation or any subsidiary of such state and local taxes. the Corporation. (E) In the event that Section 280G of the Excise Tax Code, or any successor statute, is subsequently determined repealed, this Section 4 shall cease to be less than effective on the amount taken into account hereundereffective date of such repeal. (F) Any controversy regarding the schedule arising out of Section 4(C) shall be settled by arbitration before three arbitrators, you shall repay and judgment rendered by the arbitrators, or a majority of them, may be entered in any court having jurisdiction thereof. Within thirty days after notice by either party to the Company within ten days after other requesting such arbitration, each party shall appoint a disinterested and neutral arbitrator, and the time that two thus chosen shall appoint a third disinterested and neutral arbitrator. If the amount two arbitrators so appointed cannot agree upon the appointment of a third arbitrator, then such reduction in Excise Tax is finally determined third arbitrator shall be appointed by the portion Chief Judge of the Gross-Up Payment attributable to such reduction (plus United States District Court for the portion district that then includes the City of Minneapolis. Such arbitration shall be conducted in the Gross-Up Payment attributable to City of Minneapolis in conformity with the Excise Tax procedures provided under the Uniform Arbitration Act, as adopted by the State of Minnesota and federal and state and local income tax imposed on the Gross-Up Payment being repaid by you if such repayment results as then 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 effect. Except as provided in Section 1274(b)(2)(B) 5 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)this Agreement, the Company parties shall make an additional gross-up payment each pay their own expenses in respect of connection with such excess) within ten days after the time that the amount of such excess is finally determinedarbitration and any related proceedings.

Excise Tax. In Notwithstanding anything to the contrary in this Agreement, in the event you become that Employee becomes entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments")severance payments, if any of such Severance Payments are the severance payments will be subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar federal, state or local tax that may hereafter be imposedthe “Code”), the Company Zenith shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youEmployee, 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 by this Section 6herein, shall be equal to the Total Payments. For purposes of determining whether any of the Severance Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: , (i) any other payments or benefits received or to be received by you Employee in connection with a Change in Control or your Employee’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyEmployer, any Person person whose actions result in a Change in Control or any Person person affiliated with the Company Employer or such Person) person (which, together with the Severance Paymentsseverance payments, shall constitute the "“Total Payments") ”)), shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 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 or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you 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 your residenceEmployee’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 state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunderhereunder at the time of termination of Employee’s employment, you Employee shall repay to the Company within ten days after Zenith, at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the that portion of the Gross-Up Payment attributable to the Excise Tax and federal and federal, state and local income tax imposed on the Gross-Up Payment being repaid by you if Employee to the extent that such repayment results in a 5 5 reduction in Excise Tax and/or federal and a federal, state and or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of 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), the Company Zenith shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) within ten days after at the time that the amount of such excess is finally determined. The Gross-Up Payment shall be made not later than the fifth day following the date of termination of employment, provided, however, that if the amounts of such payments cannot be finally determined on or before such day, Zenith shall pay to Employee on such day an estimate, as determined in good faith by Zenith, of the 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 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 of employment. 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 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). 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 basis for such calculations including, without limitation, any 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 statement).

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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) If it is determined that any other payments amount, right or benefits received benefit paid or payable (or otherwise provided or to be received provided) to Executive by you in connection with a Change in Control the Company or your termination any of employment (whether pursuant to the terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or agreement with is a party, other than amounts payable under this Section 10(d), (collectively, the Company“Payments”), 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, would constitute the "Total Payments") shall be treated as "an “excess parachute payments" payment” within the meaning of Section 280G(b)(2) 280G of the Code, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and all "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 payments" within payment,” then the meaning of Section 280G(b)(1) amount of the Code Payments payable to Executive under this Agreement shall be treated as reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to Executive is 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) In the event it shall be determined that the amount of the Total Payments payable to Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Executive shall be treated as subject 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 shall imposed upon the Payments. (iii) All determinations required to be equal to the lesser of (A) the total amount of the Total Payments made under this Section 10(c), including whether and (B) when a Gross-Up Payment or a Reduction is required, the amount of excess parachute payments within such Gross-Up Payment or Reduction and 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 any deferred payments or benefit assumptions to be utilized in arriving at such determination, shall be determined made by a nationally-an independent, nationally recognized accounting firm selected by you mutually acceptable to the Company and Executive (the “Auditor”); provided that in accordance the event a Reduction is determined to be required, Executive may determine which Payments shall be reduced in order to comply with the principles provisions of Sections 280G(d)(3) this Section 10(c). The Auditor shall promptly provide detailed supporting calculations to both the Company and (4) Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the CodeAuditor shall be paid by the Company. For purposes 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 determining 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 PaymentPayment or Reduction Amount, you if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall be deemed pay to pay federal income taxes at Executive the highest marginal rate excess of federal income taxation in the calendar year in which Recalculated Amount over the Gross-Up Payment is initially paid 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 Executive or the amount of such reduction in Excise Tax is finally determined the portion Payments after the Reduction, as applicable, within five (5) days of the Gross-Up Payment attributable to such reduction (plus the portion receipt 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 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 Executive under this Section 10(c) shall be paid 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 to pay him such Gross-Up Payment; provided, to the 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 payments and benefits payable to Executive under this Section 10(c) shall make an additional gross-up payment in respect of such excess) within ten days after be subject to the time that the amount of such excess is finally determinedSafe Harbor and Postponement provided at Section 8(c)(iv).

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment, award, benefit or distribution (including, without limitation, the acceleration of any other amounts in connection with a change in control (whether payment, award, distribution or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"benefit), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay or its subsidiaries to you at or for the time specified in Section 7 hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction benefit of 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other planadditional payments required under this Section 17) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, arrangement or agreement any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the Company“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 Person whose actions result Excise Tax, income tax or employment tax) imposed upon the 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 payments in the nature of compensation that are contingent on a Change in Control or for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Person affiliated with Excise Tax. The reduction of the Company or such Person) 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 (which, together with the Severance and no other Payments, constitute the "Total Payments") shall be treated as "parachute payments" within reduced. If the meaning 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 280G(b)(2) 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 Codeamount of any such Gross-Up Payment, and all "excess parachute payments" 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 meaning 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 280G(b)(1) 17(b), shall be paid to Executive (or for the benefit of the Code shall be treated as subject 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, 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; 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 Total Payments which Underpayment, if any, that has occurred and any such Underpayment shall be treated 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 pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that 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 basis, for any Excise 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 foregoing provisions of this Section 17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or 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 Company may not direct Executive to pay the claim and xxx for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Excise Tax shall be equal Company’s complying with the requirements to Section 17(c)) promptly pay the lesser of (A) the total amount of the Total Payments and (B) Company the amount of excess parachute payments within such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the meaning receipt by Executive of an amount advanced by the Company pursuant to Section 280G(b)(1) 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 writing of its intent to contest such denial of refund prior to the Code (expiration of 30 days after applying Section 6(i) hereof); and (iii) the value of any non-cash benefits or any deferred payments or benefit such determination, then such advance shall be determined by a nationally-recognized accounting firm selected by you in accordance with forgiven and shall not be required to be repaid and the principles amount of Sections 280G(d)(3) and (4) of such advance shall offset, to the Code. For purposes of determining extent thereof, 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 required 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 determinedpaid.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the 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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(k)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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(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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), xxx 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 xxx 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment 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 provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority that Employee shall not be entitled to any refund with respect to such tax claimed and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payments and other payments required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the 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 case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment, award, benefit or distribution (including, without limitation, the acceleration of any other amounts in connection with a change in control (whether payment, award, distribution or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"benefit), if any by Company or its subsidiaries to or for the benefit of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any other planadditional payments required under this Section 14) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Code or any corresponding provisions of state or local tax law, arrangement or agreement any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the Company“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 Person whose actions result Excise Tax, income tax or employment tax) imposed upon the 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 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 14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, 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 payments in the nature of compensation that are contingent on a Change in Control or for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Person affiliated with Excise Tax. The reduction of the Company or such Person) 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 (which, together with the Severance and no other Payments, constitute the "Total Payments") shall be treated as "parachute payments" within reduced. If the meaning 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 14(a). (b) Subject to the provisions of Section 280G(b)(2) 14(c), all determinations required to be made under this Section 14, including the determination of whether a Gross-Up Payment is required and of the Codeamount of any such Gross-Up Payment, 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 nationally-recognized tax counsel selected made by you Company’s independent auditors or such other payments or benefits accounting firm agreed by the Parties hereto (in whole or in part) do not constitute parachute paymentsthe “Accounting Firm”), which shall provide detailed supporting calculations to Company within 15 business days after the receipt of notice from Company that Executive has received a Payment, or such excess parachute payments earlier time as is requested by Company, provided that any determination that an Excise Tax is payable by Executive shall be made on the basis of substantial authority. Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 14(b), shall be paid to Executive (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) benefit 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 Executive to the extent of 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 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, Company is not required to withhold Excise Tax from payments to Executive. Company will promptly provide a copy of any such opinion to Executive. Any determination by the Accounting Firm meeting the requirements of this Section 14(b) shall be binding upon 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 Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that Company exhausts its remedies pursuant to Section 14(c) and Executive thereafter is required to make a payment of Excise Tax, the Accounting Firm shall determine the amount of the Total Payments which Underpayment, if any, that has occurred and any such Underpayment shall be treated promptly paid by Company to or for the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by Company. (c) Executive shall notify Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Company of a Gross-Up Payment. Such notification shall be given as subject soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the Excise Tax shall be equal expiration of the 30-day period following the date on which it gives such notice to Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Company notifies Executive in writing prior to the lesser expiration of such period that it desires to contest such claim, Executive shall: (Ai) give Company any information reasonably requested by Company relating to such claim; (ii) take such action in connection with contesting such claim as 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 Company; (iii) cooperate with Company in good faith in order to effectively contest such claim; and (iv) permit Company to participate in any proceedings relating to such claim; provided, however that 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 Excise 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 total amount foregoing provisions of this Section 14(c), 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 Total Payments taxing authority in respect of such claim and (B) may, at its sole option, either direct Executive to pay the tax claimed and sxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Company shall determine; provided, however, that if Company directs Executive to pay such claim and sxx for a refund, Company shall advance the amount of excess parachute payments within 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 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, Company may not direct Executive to pay the meaning of Section 280G(b)(1) of the Code (after applying Section 6(i) hereofclaim and sxx for a refund); and (iii) further provided that any extension of the value statute of limitations relating to the 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, Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any non-cash benefits other issue raised by the Internal Revenue Service or any deferred payments other taxing authority. (d) If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to Company’s complying with the requirements to Section 14(c)) promptly pay Company the amount of such refund (together with any interest paid or benefit credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Company pursuant to Section 14(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be determined by a nationally-recognized accounting firm selected by you in accordance with forgiven and shall not be required to be repaid and the principles amount of Sections 280G(d)(3) and (4) of such advance shall offset, to the Code. For purposes of determining extent thereof, 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 required 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 determinedpaid.

Excise Tax. In It is the event you become entitled intention of Premier and Executive that no portion of any payment under this Agreement, or payments to any amounts payable hereunder or for the benefit of Executive under any other amounts agreement or plan, be deemed to be an "Excess Parachute Payment" as defined in connection with a change Section 280G of the Code, or its successors. It is agreed that the present value of and payments to or for the benefit of Executive in control (whether or not such amounts are payable pursuant the nature of compensation, receipt of which is contingent on the Change in Control of Premier, and to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by which Section 4999 280G of the Code applies (or any similar federal, state or local tax that may hereafter be imposed), in the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 aggregate "Total Payments") shall be treated as "parachute payments" within not exceed an amount equal to one dollar less than the meaning maximum amount that Premier may pay without loss of deduction under Section 280G(b)(2280G(a) of the Code, and all "excess parachute payments" within the meaning . Present value for purposes of Section 280G(b)(1) of the Code this Agreement shall be treated as subject to the Excise Tax, unless calculated 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 accordance with Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3280G(d)(4) of the Code, . Within sixty (60) days following the earlier of (i) the giving of the notice of termination or are otherwise not subject to the Excise Tax; (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 Total Payments which shall be treated Base Period Income of Executive (as subject to the Excise Tax shall be equal to the lesser of defined in Code Section 280G), (Aii) the total amount present value 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)Payments; and (iii) the amount and present value of any non-cash benefits excess parachute payments. In the event that such opinion determines that there would be an excess parachute payment, the payment hereunder or any deferred payments or benefit other payment determined by such counsel to be includable in Total Payments shall be determined modified, reduced or eliminated as specified by a nationally-recognized accounting firm selected by you Executive in accordance with the principles writing delivered to Premier within thirty (30) days 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 his receipt of such state and local taxesopinions or, 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 no excess parachute payment. 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 provisions of such reduction in Excise Tax is finally determined the portion Sections 280G and 4999 of the Gross-Up Payment attributable to such reduction (plus the portion Code are repealed without succession, this Section shall be 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 no further force 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 determinedeffect.

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "“Severance Payments")”) of this Addendum to the Employment Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Employment Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change Change in control Control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 63(c), shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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(i3(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 residenceresidence 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 hereunderhereunder 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 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 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) excess within ten days after the time that the amount of such excess is finally determined.

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to a) For purposes of this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposedSubsection 2a(vi), the following terms shall have the following meanings: (I) Payment shall mean any payment or distribution (or acceleration of benefits) by the 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 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 or for by this Section 6, shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment benefit (whether paid or payable or distributed or distributable (or accelerated) pursuant to the terms of this Agreement or 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, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with of your options to purchase stock of the Company or such Personthe 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. (which, together with b) In the Severance Payments, constitute the "Total Payments") event it shall be treated as "determined that the amount of any Payments payable to you would constitute an “excess parachute payments" payment,” within the meaning of Section 280G(b)(2) 280G 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 then 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) amount of the Code in excess Payments payable to you under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not such Payments payable to you is subject to the Excise Tax; (ii) , but only if the amount effect of the Total Payments which shall such Reduction would 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 any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by place you in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Grossa better after-Up Payment, tax economic position than you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation would have been 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 had no such state and local taxesReduction been effected. In the event that 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 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 required and the amount of such reduction 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 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 finally determined payable by you, you may request the portion of the Gross-Up Payment attributable Firm to such reduction (plus the portion of the Gross-Up Payment attributable furnish you with a written opinion that failure to report the Excise Tax and on your applicable federal and state and local income tax imposed on return would not result in the Gross-Up Payment being repaid imposition of a negligence or similar penalty. The Determination 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 Firm shall be determined at the time of the Gross-Up Payment), binding upon 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 determinedand you.

Excise Tax. (a) In the event you become entitled to it shall be determined that any amounts payable hereunder payment, award, benefit or distribution (or any other amounts in connection with 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 (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject its affiliated entities) to or for the tax (the "Excise Tax") imposed by Section 4999 benefit of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment Executive (whether pursuant to the terms of this Agreement or otherwise) (collectively, the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Payments shall be reduced (but not below zero) to the maximum amount that could be paid to the Executive without giving rise to the Excise Tax (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 other planExcise Tax on his federal income tax return. All fees, arrangement 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 agreement with the Internal Revenue Service (the “IRS”) proceeding which has been finally and conclusively resolved, that Payments have been made to, or provided for the benefit of, Executive by the Company, any Person whose actions result 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 Change in Control or any Person affiliated with loan to Executive made on the date Executive received the Excess Payment and Executive shall repay the Excess Payment to the Company or such Person) (whichon demand, together with interest on the Severance Payments, constitute Excess Payment at the "Total Payments") shall be treated applicable federal rate (as "parachute payments" within the meaning of defined in Section 280G(b)(21274(d) of the Code, and all "excess parachute payments" within ) from the meaning 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 280G(b)(1) 4999 of the Code shall be treated as subject to at 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) time of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Codedetermination, or are otherwise not subject to the Excise Tax; (ii) the amount of the Total it is possible that Payments which shall be treated as subject to will not have been made by the Excise Tax shall be equal to the lesser of Company should have been made (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) hereofan “Underpayment”); 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 , consistent 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 calculations required 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 taxesunder this Section 8. In the event that it is determined (i) by the Excise Tax is subsequently determined to be less than the amount taken into account hereunderAccounting Firm, you shall repay to the Company within ten days after (which shall include the time that position taken by 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 Company, or together with its consolidated group, on its federal and state and local income tax imposed on return) or the Gross-Up Payment being repaid IRS or (ii) pursuant to a determination 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 court, 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)an Underpayment has occurred, the Company shall make pay an additional gross-up payment in respect amount equal to such Underpayment to Executive within ten (10) days of such excessdetermination 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 reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax or the determination of the Excess Payment. (d) within ten days after If this Section 8 would result in a reduction of the time Payments the Executive would otherwise receive in more than an immaterial amount, 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 reduced payments or other benefits (if the Company is eligible to do so), so that the amount of such excess is finally determinedpayments would not be treated as “parachute payments” for these purposes (and therefore would cease to be subject to reduction pursuant to this Section 8).

Excise Tax. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor Your benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the 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 and penalties, being hereafter collectively referred to as the “Excise Tax”), then the payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced (but not 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 that are payable to You. The Accounting Firm also will determine the Net After Tax Amount attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to You without subjecting You to the Excise Tax (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, whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be 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 adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement or agreement (with the Company, source of the reduction to be directed by You) and then by reducing the amount of any Person whose actions result in a Change in Control cash benefits under this Agreement or any Person affiliated 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 distributed 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 such Person) (whichYou, together with which assertion the Severance PaymentsAccounting Firm believes has a high probability of success or controlling precedent or substantial authority, constitute the "Total Payments") shall that an Overpayment has been made, that Overpayment will be treated for all purposes 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 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 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, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event debt ab initio that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall You must repay to the Company within ten days after together with interest at the time 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, the deemed debt and payment would either reduce the amount on which You are 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 You and the Company of that determination and the amount of such reduction in Excise Tax is finally determined that Underpayment will be paid to You promptly by the portion Company. (f) For purposes 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 this 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)18, the Company following terms 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.have their respective meanings:

Excise Tax. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor the Employee’s benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, arrangement program or agreement with arrangement, including without limitation any stock option, stock appreciation right or similar right, or the Companylapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or to any Person whose actions result in a Change in Control similar tax imposed by state or local law, or any Person affiliated interest or penalties with the Company respect to such tax (such tax or such Person) (whichtaxes, together with any such interest and penalties, being hereafter collectively referred to as the Severance Payments“Excise Tax”), constitute then the "Total Payments"payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Codereduced if, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject only to the Excise Taxextent that, unless in such reduction will allow the opinion of nationally-recognized tax counsel selected by you Employee to receive a greater Net After Tax Amount (as defined below) than he would receive absent such other payments or benefits reduction. (in whole or in partb) do not constitute parachute payments, or such excess parachute payments The Accounting Firm (in whole or in partas defined below) 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) will first determine the amount of any Parachute Payments (as defined below) that are payable to the Total Employee. The Accounting Firm also will determine the Net After Tax Amount attributable to the Employee’s total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments which shall that may be treated as subject made to the Employee without subjecting the Employee to the Excise Tax shall be equal (the “Capped Payments”). Thereafter, the Accounting Firm will determine the Net After Tax Amount attributable to the lesser of Capped Payments. (Ad) The Employee then will receive the total Parachute Payments or the Capped Payments or such other amount of less than the Total Payments and (B) total Parachute Payments, whichever provides 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 any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by you in accordance Employee with the principles of Sections 280G(d)(3) and (4) of higher Net After Tax Amount. If the CodeEmployee 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 determining making the amount 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 Gross-Up Payment, you shall 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 deemed to pay federal income taxes 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 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 time that the Excise Tax Accounting Firm makes its determinations under this Section 15, it is subsequently determined 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 less than paid or distributed to the amount taken into account hereunderEmployee under this Section 15 (“Underpayments”). If the Accounting Firm determines, you shall 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 treated for all purposes as a debt ab initio that the Employee must repay to the Company within ten days after together with interest at the time applicable 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, the deemed debt and payment would either reduce the amount on which the Employee 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 the Employee and the Company of that determination and the amount of such reduction in Excise Tax is finally determined that Underpayment will be paid to the portion Employee by the Company promptly (and no later than thirty (30) days) after the final determination of the Gross-Up Payment attributable Underpayment, which is when the Employee’s legally binding right to such reduction Underpayment first arises. (plus the portion f) For purposes 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 this 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)15, the Company following terms 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.have their respective meanings:

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the 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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(k)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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, 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change claim for refund of such tax and, subject to the provisions of the last sentence of Section 7(g), xxx 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 xxx 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment 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 provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority that Employee shall not be entitled to any refund with respect to such tax claimed and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payments and other payments required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the 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 case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In the event you that the Executive shall become entitled to any amounts payable hereunder payments and/or benefits provided by this Agreement or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any nature of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment compensation" (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of ownership or effective control covered by Section 280G(b)(2) of the Code or any Person person affiliated with the Company or such Personperson) as a result of a Change of Control (which, together with the Severance Payments, constitute collectively the "Total Company Payments"), and 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, 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 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 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 "excess parachute payments" within in excess of the meaning of "base amount" (as defined under Code Section 280G(b)(1280G(b)(3) of the Code Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of nationally-recognized 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 you such other payments or benefits 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, 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, amount" 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 (iiiy) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Accountants in accordance with the principles of Sections 280G(d)(3) and (4) 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 determining making the amount of calculation hereunder, the Gross-Up Payment, you 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 Gross-Up Payment is 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 your residencethe 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 taxestaxes 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 that the Excise Tax is subsequently determined issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to be less than jeopardize resolution of either issue, but if the amount taken into account hereunder, you parties cannot agree the Executive shall repay make the final determination with regard to the Company within ten days after issues. In the time that the amount event 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 any conference with any taxing authority as to the Excise Tax and federal and state and local or associated income tax imposed on taxes, 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 Executive shall permit the amount of such repayment at the rate provided in Section 1274(b)(2)(B) representative of the Code. In Company to accompany the event that Executive, and the 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 Accountants. (e) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding 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 determinedTax.

Excise Tax. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor Your benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the 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 and penalties, being hereafter collectively referred to as the “Excise Tax”), then the payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced (but not 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 (as defined below) that are payable to You. The Accounting Firm also will determine the Net After Tax Amount (as defined below) attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to You without subjecting You to the Excise Tax (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, whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be 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 adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement or agreement with on a pro rata basis and then by reducing the Company, amount of any Person whose actions result in a Change in Control cash benefits under this Agreement or any Person affiliated with 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 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 such Person) (whichYou, together with which assertion the Severance PaymentsAccounting Firm believes has a high probability of success or controlling precedent or substantial authority, constitute the "Total Payments") shall that an Overpayment has been made, that Overpayment will be treated for all purposes 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 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 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, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event debt ab initio that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall You must repay to the Company within ten days after together with interest at the time 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, the deemed debt and payment would either reduce the amount on which You are 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 You and the Company of that determination and the amount of such reduction in Excise Tax is finally determined that Underpayment will be paid to You by the portion Company promptly (and no later than thirty (30) days) after the final determination of the Gross-Up Payment attributable Underpayment, which is when Your legally binding right to such reduction Underpayment first arises. (plus the portion f) For purposes 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 this 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)18, the Company following terms 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.have their respective meanings:

Excise Tax. In the event you become that Employee becomes entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments")Change of Control Payment, then, if any of such Severance Payments are the Change of Control Payment will be subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federalCode, state or local tax that may hereafter be imposed), the Company Employer shall pay to you at Employee promptly following determination of the time specified in Section 7 hereof 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 youEmployee, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) Change of Control Payment and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 67(f), shall be equal to the Total PaymentsChange of Control Payment. In no event will any amount of the 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 of the Severance Payments payment will be subject to the Excise Tax and the amount of such Excise Tax: : (i) any other payments or benefits received or to be received by you Employee in connection with a the Change in of Control of Employer or your the termination of Employee’s employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyEmployer, any Person person whose actions result in a Change in of Control or any Person person affiliated with the Company Employer or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 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 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 Total Payments and Change of Control Payment or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code and (4) after applying Section 6(iclause (i) hereof)above; and and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you 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 rates of taxation in the state and locality that imposes such tax on the date of your residencetermination 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 hereunderunder this Agreement at the time of the termination of Employee’s employment, you Employee shall repay to the Company within ten days after the time that the amount of such reduction in Excise Tax is finally determined Employer 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 CodeCode at the time the amount of such reduction in Excise Tax is finally determined. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder under this Agreement 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), the Company Employer shall make an additional gross-up payment in respect of such excess (plus any interest payable with respect to such excess) within ten days after the time that the amount of such excess is finally determineddetermined but in no event later than the end of the calendar year next following the year in which the related taxes are remitted.

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the, payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 1 (the "“Severance Payments")”) of these Special Severance Provisions, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by this Section 63 of these Special Severance Provisions, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement and these Special Severance Provisions or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" payment” within the meaning of Section 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 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 rendered, within the meaning of Section 280G(b)(4section 28OG(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section section 280G(b)(1) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 1 (the "“Severance Payments")”) of these Special Severance Provisions, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by this Section 63 of these Special Severance Provisions, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement and these Special Severance Provisions or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" payment” within the meaning of Section 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 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section section 280G(b)(1) of of, the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 63(c), shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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(i3(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 residenceresidence 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 hereunderhereunder 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 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 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) excess within ten days after the time that the amount of such excess is finally determined.

Excise Tax. In the event you become that the Executive becomes entitled to any amounts payable hereunder Severance Benefits or any other amounts in connection with a change in control (whether payment or not such amounts are payable pursuant to benefit under this Agreement) , or under any other agreement with, or plan of the Company (in the "Severance aggregate, the “Total Payments"”), if any of such Severance the Total Payments are will be subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified Executive, in Section 7 hereof cash, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by you, the Executive after deduction of any Excise Tax on upon the Total Payments (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment Gross-Up Payment provided for by this Section 68.5 (including FICA and FUTA), shall be equal to the Total Payments. Such payment shall be made by the Company 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 Severance Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax: : (i1) any other Any payments or benefits received or to be received by you the Executive in connection with a Change in Control or your the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement arrangement, or agreement with the Company, or with any Person 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 person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"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) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected as supported by you the Company’s independent auditors and reasonably acceptable to the Executive, such other payments or 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; ; (ii2) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of of: (Ai) the total amount of the Total Payments and Payments; or (Bii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(iclause (a) hereofabove); and and (iii3) the The value of any non-cash noncash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you the Executive 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 made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residencethe 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 state and local taxes. . (c) In the event that the Excise Tax is Internal Revenue Service subsequently determined to be less than adjusts 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 excise 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)computation herein described, the Company shall reimburse the Executive for the full amount necessary to make an additional gross-up payment in respect the Executive whole (less any amounts received by the Executive that he would not have received had the computation initially been computed as subsequently adjusted), including the value of such excess) within ten days after benefits that were erroneously limited, the time that value of any overpaid excise tax, and any related interest and/or penalties due to the amount of such excess is finally determinedInternal Revenue Service.

Excise Tax. In the event you become entitled to that the Termination Payment or any ---------- other amounts payable hereunder to the Executive, his designated beneficiary or his dependents under 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 amounts in connection with a change in control (whether plan, program or not such amounts are payable pursuant to this Agreement) (policy of the "Severance Payments")Company, if any of such Severance Payments are should become subject to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code (or any similar federaltax or assessment (collectively, state or local tax that may hereafter be imposed"Excise Taxes"), the Company shall pay to you at the time specified in Section 7 hereof an additional Executive, his designated beneficiary 17 or his dependents, as the case may be, on demand, the amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of any 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 Total Payments Executive, his designated beneficiary or his dependents and (as hereinafter definedii) any and any federalall income and other taxes, state and local income tax and including additional Excise Tax upon Taxes, that may be imposed on the payment provided for by this Section 6Executive, shall be equal to the Total Payments. For purposes his designated beneficiary or his dependents in respect of determining whether any of the Severance Payments will amounts to be subject 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 of such (the "Additional Excise Tax: 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 payments taxes that may be imposed on the Executive, his designated beneficiary or benefits received his dependents, (ii) any and all interest, fines and penalties that may be imposed on the Executive, his designated beneficiary or to be received by you his dependents in connection with a Change in Control any such additional Excise Taxes, income taxes or your termination of employment (whether pursuant to the terms of this Agreement or any other plantaxes, arrangement or agreement with the 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 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) any and all income and other taxes, including additional Excise Taxes, that may be imposed on the value Executive, his designated beneficiary or his dependents in respect 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 amounts to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of your residencepaid to Executive, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxeshis designated beneficiary or his dependents under clause (i) or (ii) above or under this clause (iii). In the event that the Excise Tax If it is subsequently determined that the Executive has received a sum greater than necessary to be less than pay any such Excise Taxes, the amount taken into account hereunder, you Executive shall repay promptly return such overage to the Company within ten days after Company. The purpose of this paragraph 10 is to place the time Executive, his designated beneficiary and his dependents in the same position on an after-tax basis that each of them would have been in if the amount of such reduction in Excise Tax is finally determined Termination Payment and all other amounts payable to the portion Executive, his designated beneficiary or his dependents under this Agreement or under any plan, program or policy of the Gross-Up Payment attributable Company, and all benefits provided to such reduction (plus the portion Executive or his dependents under this Agreement or under any plan, program or policy of the Gross-Up Payment attributable Company, had not been subject to the any 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 determinedTaxes.

Excise Tax. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor Your benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the 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 and penalties, being hereafter collectively referred to as the “Excise Tax”), then the payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced (but not 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 (as defined below) that are payable to You. The Accounting Firm also will determine the Net After Tax Amount (as defined below) attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to You without subjecting You to the Excise Tax (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, whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be 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 adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement or agreement with on a pro rata basis and then by reducing the Company, amount of any Person whose actions result in a Change in Control cash benefits under this Agreement or any Person affiliated with 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 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 such Person) (whichYou, together with which assertion the Severance PaymentsAccounting Firm believes has a high probability of success or controlling precedent or substantial authority, constitute the "Total Payments") shall that an Overpayment has been made, that Overpayment will be treated for all purposes 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 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 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, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event debt ab initio that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall You must repay to the Company within ten 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, the deemed debt and payment would either reduce the amount on which You are 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 You and the Company of that determination and the amount of that Underpayment will be paid to You promptly (and no later than thirty (30) days after the time that the amount of such reduction in Excise Tax is finally determined the portion final determination of the Gross-Up Payment attributable to such reduction Underpayment) by the Company. (plus the portion f) For purposes 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 this 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)18, the Company following terms 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.have their respective meanings:

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 1 (the "“Severance Payments")”) of these Special Severance Provisions, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by this Section 63 of these Special Severance Provisions, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement and these Special Severance Provisions or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor Your benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a "Payment"), would be subject to the excise tax imposed by Section 4999 of the 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 and penalties, being hereafter collectively referred to as the "Excise Tax"), then the payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced (but not 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 that are payable to You. The Accounting Firm also will determine the Net After Tax Amount attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to You without subjecting You to the Excise Tax (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, whichever provides You with the higher Net After Tax Amount but in no event will any such reduction imposed by this Section 18 be 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 adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement or agreement (with the Company, source of the reduction to be directed by You) and then by reducing the amount of any Person whose actions result in a Change in Control cash benefits under this Agreement or any Person affiliated 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 distributed 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 such Person) (whichYou, together with which assertion the Severance PaymentsAccounting Firm believes has a high probability of success or controlling precedent or substantial authority, constitute the "Total Payments") shall that an Overpayment has been made, that Overpayment will be treated for all purposes 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 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 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, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event debt ab initio that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall You must repay to the Company within ten days after together with interest at the time 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, the deemed debt and payment would either reduce the amount on which You are 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 You and the Company of that determination and the amount of such reduction in Excise Tax is finally determined that Underpayment will be paid to You promptly by the portion Company. (f) For purposes 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 this 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)18, the Company following terms 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.have their respective meanings:

Excise Tax. In (a) If any payment or distribution by the event you become entitled to Company and/or any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 Affiliate of the Code (Company to or any similar federalfor Your benefit, state whether paid or local tax that may hereafter be imposed), the 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 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 the Total 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 payable or benefits received distributed or to be received by you in connection with a Change in Control or your termination of employment (whether distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the 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 and penalties, being hereafter collectively referred to as the “Excise Tax”), then the payments and benefits payable or provided under this Agreement (or other Payments as described below) shall be reduced (but not 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 (as defined below), that are payable to You. The Accounting Firm also will determine the Net After Tax Amount (as defined below), attributable to Your total Parachute Payments. (c) The Accounting Firm will next determine the largest amount of Payments that may be made to You without subjecting You to the Excise Tax (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, whichever provides You with the higher Net After Tax Amount, but in no event will any such reduction imposed by this Section 18 be 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 adjusted by first reducing the amount of any noncash benefits under this Agreement or any other plan, agreement or arrangement or agreement with on a pro rata basis and then by reducing the Company, amount of any Person whose actions result in a Change in Control cash benefits under this Agreement or any Person affiliated with 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 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 such Person) (whichYou, together with which assertion the Severance PaymentsAccounting Firm believes has a high probability of success or controlling precedent or substantial authority, constitute the "Total Payments") shall that an Overpayment has been made, that Overpayment will be treated for all purposes 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 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 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, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event debt ab initio that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, you shall You must repay to the Company within ten 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, the deemed debt and payment would either reduce the amount on which You are 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 You and the Company of that determination and the amount of that Underpayment will be paid to You promptly (and no later than thirty (30) days after the time that the amount of such reduction in Excise Tax is finally determined the portion final determination of the Gross-Up Payment attributable to such reduction Underpayment) by the Company. (plus the portion f) For purposes 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 this 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)18, the Company following terms 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.have their respective meanings:

Excise Tax. In (i) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled that it shall be determined that any payment (including any of the Tax Gross-Up Payments as defined below in this Section 9(d)) or benefit (including any accelerated vesting of options or other equity awards) made or provided, or to any amounts payable hereunder be made or provided, by the Company or the REIT (or any other amounts in connection with a change in control (successor thereto or affiliate thereof) to or for the benefit of the Executive, whether or not such amounts are payable pursuant to the terms of this Agreement, any other agreement, plan, program or arrangement of or with the Company or the REIT (or any successor thereto or affiliate thereof) or otherwise (the "Severance Payments"a “Total Payment”), if any of such Severance Payments are will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any similar federal, state comparable tax imposed by any replacement or local successor provision of United States tax that may hereafter be imposedlaw (the “Excise Tax”), then the Company shall pay to you at the time specified in Section 7 hereof an Executive one or more additional amount cash payments (the "“Tax Gross-Up Payment"Payments”) in such amounts so that the net cash amount retained by youthe Executive, after deduction or payment of any (A) the Excise Tax imposed on the Total Payments (as hereinafter definedincluding the Excise Tax imposed on the Tax Gross-Up Payments) and any (B) all federal, state and local income tax 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 of the Total Payments will be subject to the Excise Tax, (B) the amount of the Excise Tax upon imposed thereon, and (C) the payment provided for by this Section 6, calculation of the related Tax Gross-Up Payment shall be equal to made by the Total PaymentsCompany 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 of the Severance Total Payments will be subject to the Excise Tax and Tax, (1) all of the amount of such Excise Tax: (i) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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") Payments shall be treated as "“parachute payments" ” (within the meaning of Section 280G(b)(2) 280G of the Code, ) unless and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Taxextent that, unless in the written opinion of nationally-recognized independent tax counsel selected (and paid for) by you such other payments or benefits the Company and reasonably acceptable to the Executive (in whole or in part) “Tax Counsel”), certain Payments do not constitute parachute payments, or such and (2) all “excess parachute payments payments” (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) 280G 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 unless and only to the lesser extent that, in the written opinion of Tax Counsel (A) upon which the total amount of the Total Payments and (B) the amount of Executive may rely), such excess parachute payments within are not subject to 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 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 CodeExcise Tax. For purposes of determining the amount of the any Tax Gross-Up Payment, you the Executive shall be deemed to pay (x) federal income taxes tax at the highest marginal rate of federal income taxation in effect for the calendar year in during which the such Tax Gross-Up Payment is to be made 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 rate of taxation rates in effect for such calendar year in the state and locality local municipality of your residencethe 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 maximum reduction in federal income taxes which could be obtained from tax attributable to the deduction of such state and local income taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken , and taking into account hereunder, you shall repay 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 Company within ten days after the time that the amount of Executive during such reduction in Excise calendar year. (iii) An initial Tax is finally determined the portion of the Gross-Up Payment attributable shall be made to such reduction the Executive on the date that the Change of Control Severance Payment is made, and within ten (plus the 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 in no event later than twenty (20) days after the Payment Date. Whenever any Tax Gross-Up Payment attributable (or estimate thereof) is made to the Excise Executive, the Company shall provide to the Executive the Company’s Tax Determination related to such payment, together with detailed supporting calculations and federal 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 state the required supporting documentation. Each Tax Determination shall become final and local income tax imposed on binding upon the parties (A) if there is no Tax Dispute, at the end of such fifteen (15) day period, without 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 being repaid by you if such repayment results in a 5 5 reduction in Excise as provided for above, any 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 PaymentPayment 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 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 additional gross-up payment in respect of such excess) within ten days after the time that Underpayment, the amount of such excess 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 finally determinedentitled to receive, the Executive agrees to provide such assistance as is reasonabley necessary so that the Company (or any successor thereto) can eliminate or reduce the Tax Gross-up Payments.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the "Severance any such payments, 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"”), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the “Excise Tax”), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the "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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 8(i)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the 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: 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 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 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 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 8(h)) 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 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 received by you 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 Change 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment all developments and events relating to any such Employee Claim (whether 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 terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "“Severance Payments")”) of this Addendum to the Employment Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Employment Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" payment” within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In the event you that the Executive shall become entitled to any amounts payable hereunder payments and/or benefits provided by this Agreement or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any “nature of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment compensation” (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of ownership or effective control covered by Section 280G(b)(2) of the Code or any Person person affiliated with the Company or such Personperson) as a result of a Change of Control (whichcollectively the “Company Payments”), together and 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, 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 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 Severance Paymentsforegoing, constitute but, if the "Total Payments"Executive does not 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 "excess “parachute payments" within ” in excess of the meaning of “base amount” (as defined under Code Section 280G(b)(1280G(b)(3) of the Code Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of nationally-recognized 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 you such other payments or benefits 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, 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, amount” 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 (iiiy) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Accountants in accordance with the principles of Sections 280G(d)(3) and (4) 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 determining making the amount of calculation hereunder, the Gross-Up Payment, you 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 Gross-Up Payment is 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 your residencethe 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 taxestaxes 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 that the Excise Tax is subsequently determined issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to be less than jeopardize resolution of either issue, but if the amount taken into account hereunder, you parties cannot agree the Executive shall repay make the final determination with regard to the Company within ten days after issues. In the time that the amount event 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 any conference with any taxing authority as to the Excise Tax and federal and state and local or associated income tax imposed on taxes, 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 Executive shall permit the amount of such repayment at the rate provided in Section 1274(b)(2)(B) representative of the Code. In Company to accompany the event that Executive, and the 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 Accountants. (e) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding 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 determinedTax.

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to a) For purposes of this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposedSubsection 2a(vi), the following terms shall have the following meanings: (I) Payment shall mean any payment or distribution (or acceleration of benefits) by the 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 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 or for by this Section 6, shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment benefit (whether paid or payable or distributed or distributable (or accelerated) pursuant to the terms of this Agreement or 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, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with of your options to purchase stock of the Company or such Personthe 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. (which, together with b) In the Severance Payments, constitute the "Total Payments") event it shall be treated as "determined that the amount of any Payments payable to you would constitute an “excess parachute payments" payment,” within the meaning of Section 280G(b)(2) 280G 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 then 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) amount of the Code in excess Payments payable to you under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not such Payments payable to you is subject to the Excise Tax; (ii) , but only if the amount effect of the Total Payments which shall such Reduction would 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 any deferred payments or benefit shall be determined by a nationally-recognized accounting firm selected by place you in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Grossa better after-Up Payment, tax economic position than you shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation would have been 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 had no such state and local taxesReduction been effected. In the event that 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 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 required and the amount of such reduction 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 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 finally determined payable by you, you may request the portion of the Gross-Up Payment attributable Firm to such reduction (plus the portion of the Gross-Up Payment attributable furnish you with a written opinion that failure to report the Excise Tax and on your applicable federal and state and local income tax imposed on return would not result in the Gross-Up Payment being repaid imposition of a negligence or similar penalty. The Determination 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 Firm shall be determined at the time of the Gross-Up Payment), binding upon the Company shall make an additional gross-up payment and you. 2. Subsection 2a(viii) is amended in respect of such excess) within ten days after the time that the amount of such excess is finally determined.its entirety as follows:

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the "Severance any such payments, 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"”), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the “Excise Tax”), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the "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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(i)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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 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(h)) 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment all developments and events relating to any such Employee Claim (whether 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 terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In the event you become entitled to any amounts payable hereunder or any (a) Any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms provision of this Agreement to the contrary notwithstanding, if the present value (as defined herein) of the total amount of payments and benefits to be paid or any other plan, arrangement or agreement with the 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 provided to you under this Agreement which are considered to be treated as "parachute payments" within the meaning of Section 280G(b)(2280G(b) of the Internal Revenue Code of 1986, as amended (the "Code"), and all when added to any other such "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 received by you such other payments from the Company upon or benefits (in whole after a Change of Control, whether or in part) do not constitute parachute paymentsunder this Agreement, 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 is in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not 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 Excise Tax; Company shall pay to you an additional amount (ii) hereinafter referred to as the amount of the Total Payments which shall be treated as subject to the "Excise Tax Premium"). The Excise Tax Premium shall be equal to the lesser of (A) 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 Total Payments 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. (Bb) 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 excess parachute payments within the meaning 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 280G(b)(1) of the Code (after applying Section 6(i) hereof); and (iii) 8, "present value" means 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 (4Section 1274(b)(2) of the Code. For purposes of determining Code under 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 rules provided in Treasury Regulations under Section 1274(b)(2)(B) 280G 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. In Anything in this Agreement to the contrary notwithstanding, in the event you become entitled it shall be determined that any payment, benefit or distribution to any amounts payable hereunder or any other amounts in connection with a change in control (whether for your benefit or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are acceleration thereof would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any similar federalinterest or penalties with respect to such excise tax (collectively, state such excise tax, together with any such interest or local tax that may hereafter be imposedpenalties, 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 “Total Payments”), then, after taking into account any reduction in the Company Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall pay first be reduced, and the noncash severance payments shall thereafter be reduced, to you at the time specified in Section 7 hereof an additional amount extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (the "Gross-Up Payment"i) such that the net amount retained by youof such Total Payments, as so reduced (and after deduction subtracting the net amount of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax taxes on such reduced Total Payments and Excise Tax upon after taking into account the payment provided for by this Section 6, shall be 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. For purposes Payments without such reduction (but after subtracting the net amount of determining whether any of the Severance federal, state and local income taxes on such Total Payments will be subject to the Excise Tax and the amount of Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); provided, however, that you may elect to have the noncash severance payments reduced (or eliminated) prior to any reduction of the cash severance payments. You shall remain solely liable for all income taxes, Excise Tax: (i) , or other amounts assessed on any other payments or benefits received and nothing in this Agreement shall be interpreted as obligating the Company, or any successors thereto, to be received pay (or reimburse you for) any income taxes, Excise Tax, or other taxes or amounts assessed against or incurred by you in connection with a Change in Control or your termination receipt of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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 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, 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 determinedbenefits.

Excise Tax. In (a) The parties hereto agree to reasonably cooperate with each other to minimize any taxes that may be imposed under Section 4999 of the event you become 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 shareholders. Notwithstanding the foregoing, whether or not the Executive becomes entitled to any amounts payable hereunder payments hereunder, if any of the payments or any other amounts benefits received or to be received by the Executive in connection with a change Change in control (whether Control or not such amounts are payable the Executive's termination of employment pursuant to the terms of this Agreement) Agreement or the Company's Stock Option Plans (all such payments and benefits, excluding the Gross-Up Payment, being hereinafter referred to as the "Severance Total Payments"), if any of such Severance Payments are ) will be subject to excise tax imposed by section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax together with any such interest and penalties are hereinafter collectively referred to as the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 hereof Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by youthe Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and employment taxes and Excise Tax upon the payment provided for by this Section 6Gross-Up Payment, shall be equal to the Total Payments. . (b) For purposes of determining whether any of the Severance Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: , (iI) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination all of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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") Payments shall be treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the Code) unless, 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 nationally-recognized tax counsel ("Tax Counsel") selected by you the Company and reasonably acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or 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)(4section 280G(b)(4)(B) of the Code Code) in excess of the base amount within the meaning of Section 280G(b)(3) of the CodeBase Amount allocable to such reasonable compensation, 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 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 the Executive shall be deemed to pay federal income taxes 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 your residencethe 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 subsequently finally determined to be less than the amount taken into account hereunderhereunder in calculating the Gross-Up Payment, you the Executive shall repay to the Company Company, within ten five (5) business days after following the time that the amount of such reduction in the Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the that portion of the Gross-Up Payment attributable to the Excise Tax and federal and federal, state and local income tax and employment taxes imposed on the Gross-Up Payment being repaid by you if the Executive), to the extent that such repayment results in a 5 5 reduction in the Excise Tax and/or federal and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income tax deduction) and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined determined, in accordance with the procedures set forth in Section 11(d) below, to exceed the amount taken into account hereunder (including by reason of 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 payment administrative or judicial proceedings concerning the existence or amount of which cannot be determined at liability for Excise Tax with respect to the time 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 make an additional gross-up payment 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 excessclaim and may either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any additional Excise Tax or income tax (including interest or penalties with respect thereto) within ten days 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 time 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 approval is finally determinednot obtained prior to the Effective Time, this Agreement shall become null and void on the Effective Time.

Excise Tax. (a) In the event you that the Executive shall become entitled to any amounts payable hereunder payments and/or benefits provided by this Agreement or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any nature of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment compensation" (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") or any Person person affiliated with the Company or such Personperson) as a result of a Change of Control (which, together with the Severance Payments, constitute collectively the "Total Company Payments"), and 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, 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 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. (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 "excess parachute payments" within in excess of the meaning of "base amount" (as defined under Code Section 280G(b)(1280G(b)(3) of the Code Code) shall be treated as subject to the Excise Tax, unless and except to the extent that, in the opinion of nationally-recognized 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 you such other payments or benefits 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, 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, amount" 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 (iiiy) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Accountants in accordance with the principles of Sections 280G(d)(3) and (4) 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 determining making the amount of calculation hereunder, the Gross-Up Payment, you 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 Gross-Up Payment is 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 your residencethe 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 taxestaxes 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 that the Excise Tax is subsequently determined issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to be less than jeopardize resolution of either issue, but if the amount taken into account hereunder, you parties cannot agree the Executive shall repay make the final determination with regard to the Company within ten days after issues. In the time that the amount event 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 any conference with any taxing authority as to the Excise Tax and federal and state and local or associated income tax imposed on taxes, 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 Executive shall permit the amount of such repayment at the rate provided in Section 1274(b)(2)(B) representative of the Code. In Company to accompany the event that Executive, and the 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 Accountants. (f) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding 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 determinedTax.

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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) If it is determined that any other payments amount, right or benefits received benefit paid or payable (or otherwise provided or to be received provided) to Executive by you in connection with a Change in Control the Company or your termination any of employment (whether pursuant to the terms of its affiliates under this Agreement or any other plan, program or arrangement under which Executive participates or agreement with is a party, other than amounts payable under this Section 10(d), (collectively, the Company“Payments”), 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, would constitute the "Total Payments") shall be treated as "an “excess parachute payments" payment” within the meaning of Section 280G(b)(2) 280G of the Code, subject to the excise tax imposed by Section 4999 of the Code, as amended from time to time (the “Excise Tax”), and all "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 payments" within payment,” then the meaning of Section 280G(b)(1) amount of the Code Payments payable to Executive under this Agreement shall be treated as reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to Executive is 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) In the event it shall be determined that the amount of the Total Payments payable to Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then Executive shall be treated as subject 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 shall imposed upon the Payments. (iii) All determinations required to be equal to the lesser of (A) the total amount of the Total Payments made under this Section 10(d), including whether and (B) when a Gross-Up Payment or a Reduction is required, the amount of excess parachute payments within such Gross-Up Payment or Reduction and 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 any deferred payments or benefit assumptions to be utilized in arriving at such determination, shall be determined made by a nationally-an independent, nationally recognized accounting firm selected by you mutually acceptable to the Company and Executive (the “Auditor”); provided that in accordance the event a Reduction is determined to be required, Executive may determine which Payments shall be reduced in order to comply with the principles provisions of Sections 280G(d)(3) this Section 10(d). The Auditor shall promptly provide detailed supporting calculations to both the Company and (4) Executive following any determination that a Reduction or Gross-Up Payment is necessary. All fees and expenses of the CodeAuditor shall be paid by the Company. For purposes 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 determining 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 PaymentPayment or Reduction Amount, you if applicable, based upon the determinations made by the Internal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Recalculated Amount”) and the Company shall be deemed pay to pay federal income taxes at Executive the highest marginal rate excess of federal income taxation in the calendar year in which Recalculated Amount over the Gross-Up Payment is initially paid 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 Executive or the amount of such reduction in Excise Tax is finally determined the portion Payments after the Reduction, as applicable, within five (5) days of the Gross-Up Payment attributable to such reduction (plus the portion receipt 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 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 Executive under this Section 10(d) shall be paid 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 to pay him such Gross-Up Payment; provided, to the 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 payments and benefits payable to Executive under this Section 10(d) shall make an additional gross-up payment in respect of such excess) within ten days after be subject to the time that the amount of such excess is finally determinedSafe Harbor and Postponement provided at Section 8(c)(iv).

Excise Tax. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 3(d) hereof an additional amount (the "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 63(c), shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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(i3(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, 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.deferred

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "“Severance Payments")”) of this Addendum to the Employment Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "Gross-“Gross Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Employment Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. (a) In the event you become that the Executive becomes entitled to any amounts payable hereunder or the payments and benefits provided under this Agreement and/or any other amounts payments or benefits in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 termination of the Code (or any similar federal, state or local tax that may hereafter be imposed), Executive’s employment with the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change change in Control control or any Person person affiliated with the Company or such Personperson) (whichcollectively, together with the Severance “Payments”), constitute and if any of the "Total Payments"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” (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 of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) the Payments shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless unless, in the opinion of nationally-recognized tax counsel selected by you such other payments or benefits Independent Tax Counsel, the Payments (in whole or in part) do not constitute parachute payments, 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 or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(iclause (i) hereofabove); , and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, 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. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the 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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(k)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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, 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change 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 xx 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment 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 provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority that Employee shall not be entitled to any refund with respect to such tax claimed and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payments and other payments required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the 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 case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In the event you become entitled to any amounts payable hereunder or any (a) Any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms provision of this Agreement to the contrary notwithstanding, if the present value (as defined herein) of the total amount of payments and benefits to be paid or any other plan, arrangement or agreement with the 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 provided to you under this Agreement which are considered to be treated as "parachute payments" within the meaning of Section 280G(b)(2280G(b) of the Internal Revenue Code of 1986, as amended (the "Code"), and all when added to any other such "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 received by you such other payments from the Company upon or benefits (in whole after a Change of Control, whether or in part) do not constitute parachute paymentsunder this Agreement, 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 is in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not 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 Excise Tax; Company shall pay to you an additional amount (ii) hereinafter referred to as the amount of the Total Payments which shall be treated as subject to the "Excise Tax Premium"). The Excise Tax Premium shall be equal to the lesser of (A) 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 Total Payments 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. (Bb) 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 excess parachute payments within the meaning 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 280G(b)(1) of the Code (after applying Section 6(i) hereof); and (iii) 3, "present value" means 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 (4Section 1274(b)(2) of the Code. For purposes of determining Code under the amount rules provided in Treasury Regulations under Section 280G of the Gross-Up PaymentCode. (d) References to Code Section 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, you or is replaced by a successor statute, the provisions of this Section 3 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 modified without further action of the maximum reduction parties in federal income taxes which could be obtained from deduction of a manner consistent with such state and local taxesamendments or successor statutes, as the case may be. In the event that Code Section 280G or any successor 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 such regulations, 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 modifications shall not be unreasonably withheld. (e) The foregoing notwithstanding, if you receive payment from the Company for reimbursement of any excise taxes pursuant to any other agreement, to the extent any Excise Tax is subsequently determined to Premium under this Agreement be less than the amount taken into account hereunderduplicative, you shall repay not be entitled to the Company within ten days after the time that the amount receive payment of such reduction in an 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 determinedPremium.

Excise Tax. In (i) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled that it shall be determined that any payment (including any of the Tax Gross-Up Payments as defined below in this Section 9(d)) or benefit (including any accelerated vesting of options or other equity awards) made or provided, or to any amounts payable hereunder be made or provided, by the Company or the REIT (or any other amounts in connection with a change in control (successor thereto or affiliate thereof) to or for the benefit of the Executive, whether or not such amounts are payable pursuant to the terms of this Agreement, any other agreement, plan, program or arrangement of or with the Company or the REIT (or any successor thereto or affiliate thereof) or otherwise (the "Severance Payments"a “Total Payment”), if any of such Severance Payments are will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any similar federal, state comparable tax imposed by any replacement or local successor provision of United States tax that may hereafter be imposedlaw (the “Excise Tax”), then the Company shall pay to you at the time specified in Section 7 hereof an Executive one or more additional amount cash payments (the "“Tax Gross-Up Payment"Payments”) in such amounts so that the net cash amount retained by youthe Executive, after deduction or payment of any (A) the Excise Tax imposed on the Total Payments (as hereinafter definedincluding the Excise Tax imposed on the Tax Gross-Up Payments) and any (B) all federal, state and local income tax 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 of the Total Payments will be subject to the Excise Tax, (B) the amount of the Excise Tax upon imposed thereon, and (C) the payment provided for by this Section 6, calculation of the related Tax Gross-Up Payment shall be equal to made by the Total PaymentsCompany 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 of the Severance Total Payments will be subject to the Excise Tax and Tax, (1) all of the amount of such Excise Tax: (i) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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") Payments shall be treated as "“parachute payments" ” (within the meaning of Section 280G(b)(2) 280G of the Code, ) unless and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Taxextent that, unless in the written opinion of nationally-recognized independent tax counsel selected (and paid for) by you such other payments or benefits the Company and reasonably acceptable to the Executive (in whole or in part) “Tax Counsel”), certain Payments do not constitute parachute payments, or such and (2) all “excess parachute payments payments” (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) 280G 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 unless and only to the lesser extent that, in the written opinion of Tax Counsel (A) upon which the total amount of the Total Payments and (B) the amount of Executive may rely), such excess parachute payments within are not subject to 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 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 CodeExcise Tax. For purposes of determining the amount of the any Tax Gross-Up Payment, you the Executive shall be deemed to pay (x) federal income taxes tax at the highest marginal rate of federal income taxation in effect for the calendar year in during which the such Tax Gross-Up Payment is to be made 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 rate of taxation rates in effect for such calendar year in the state and locality local municipality of your residencethe 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 maximum reduction in federal income taxes which could be obtained from tax attributable to the deduction of such state and local income taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken , and taking into account hereunder, you shall repay 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 Company within ten days after the time that the amount of Executive during such reduction in Excise calendar year. (iii) An initial Tax is finally determined the portion of the Gross-Up Payment attributable shall be made to such reduction the Executive on the date that the Change of Control Severance Payment is made, and within ten (plus the 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 in no event later than twenty (20) days after the Payment Date. Whenever any Tax Gross-Up Payment attributable (or estimate thereof) is made to the Excise Executive, the Company shall provide to the Executive the Company’s Tax Determination related to such payment, together with detailed supporting calculations and federal 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 state the required supporting documentation. Each Tax Determination shall become final and local income tax imposed on binding upon the parties (A) if there is no Tax Dispute, at the end of such fifteen (15) day period, without 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 being repaid by you if such repayment results in a 5 5 reduction in Excise as provided for above, any 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 PaymentPayment 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 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 additional gross-up payment in respect of such excess) within ten days after the time that Underpayment, the amount of such excess 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 finally determinedentitled to receive, the Executive agrees to provide such assistance as is reasonabley necessary so that the Company (or any successor thereto) can eliminate or reduce the Tax Gross-up Payments.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the individually referred to herein as a "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount two or more of such Excise Tax: (i) any other additional payments or benefits received or being referred to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 herein as "Total Gross-Up Payments") shall be treated in an amount such that after payment by Employee of all taxes (as "parachute payments" within the meaning of defined in Section 280G(b)(27(i)) 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 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 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 imposed upon the Gross-Up Payment, you 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 deemed 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 pay federal income taxes 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 highest marginal rate benefit of federal income taxation Employee within five business days of Employee's receipt of such Determination. The existence of a Dispute shall not in the calendar year in which 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 be made and state and local income taxes at the highest marginal rate provisions of taxation Section 7(c) through (i) below. As a result of the uncertainty in the state application of Sections 4999 and locality of your residence, net 280G of the maximum reduction in federal income taxes Code, it is possible that Gross-Up Payments (or portions thereof) which could be obtained will not have been made by Employer should have been made ("Underpayment"), and if upon any reasonable written request from deduction 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 such state and local taxes. In the event that the any Excise Tax is subsequently determined to be less than or any additional Excise Tax, as the amount taken into account hereundercase may be, you shall repay to the Company within ten days after the time that Tax Counsel shall, at Employer's expense, determine the amount of the Underpayment that has occurred and any such reduction 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 Excise Tax Section 7(h)) that any Payment is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable subject to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid 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 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 Employee against Employer under this 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 7 (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment"Claim"), the Company shall make an additional gross-up payment in respect including, but not limited to, a claim for indemnification of such excess) within ten days after the time that the amount of such excess is finally determined.Employee by Employer under

Excise Tax. In Notwithstanding anything to the contrary in this Agreement, in the event you become that Employee becomes entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments")severance payments, if any of such Severance Payments are the severance payments will be subject to the tax (the "“Excise Tax"”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (or any similar federal, state or local tax that may hereafter be imposedthe “Code”), the Company Zenith shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youEmployee, 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 by this Section 6herein, shall be equal to the Total Payments. For purposes of determining whether any of the Severance Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: , (i) any other payments or benefits received or to be received by you Employee in connection with a Change in Control or your Employee’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the CompanyEmployer, any Person person whose actions result in a Change in Control or any Person person affiliated with the Company Employer or such Person) person (which, together with the Severance Paymentsseverance payments, shall constitute the "“Total Payments") ”)), shall be treated as "“parachute payments" ” within the meaning of Section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 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 or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you 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, you 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 your residenceEmployee’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 state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunderhereunder at the time of termination of Employee’s employment, you Employee shall repay to the Company within ten days after Zenith, at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the that portion of the Gross-Up Payment attributable to the Excise Tax and federal and federal, state and local income tax imposed on the Gross-Up Payment being repaid by you if the Employee to the extent that such repayment results in a 5 5 reduction in Excise Tax and/or federal and a federal, state and or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of 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), the Company Zenith shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Employee with respect to such excess) within ten days after at the time that the amount of such excess is finally determined. The Gross-Up Payment shall be made not later than the fifth day following the date of termination of employment, provided, however, that if the amounts of such payments cannot be finally determined on or before such day, Zenith shall pay to Employee on such day an estimate, as determined in good faith by Zenith, of the 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 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 of employment. 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 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). 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 basis for such calculations including, without limitation, any 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 statement).

Excise Tax. a) In the event you become entitled to that any amounts payable hereunder payment benefit or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 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 the Total 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 benefits entitlement received or to be received by you in connection with a Change in of Control of the Company or your the termination of your employment (whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in of Control of the Company or any Person person affiliated with the Company or such Personperson (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 (whichthe “Code”), or any corresponding provisions of state or local tax laws, 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 Severance Payments“Excise Tax”), constitute the "Total Payments") then you shall be treated as "parachute payments" within 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 meaning of Section 280G(b)(2) Gross-Up Payment, you will retain an amount of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject Gross-Up Payment equal to the Excise Tax, unless in Tax imposed upon 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 Payments. Those Payments that 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 referred to herein as the lesser “Parachute Payments”. Notwithstanding the foregoing provisions of (A) the total amount of the Total Payments and (B) the amount of excess parachute payments within the meaning of this Section 280G(b)(1) of the Code (after applying Section 6(i) hereof); and (iii) the value of any non-cash benefits or any deferred payments or benefit 10, if it shall be determined by that you are entitled to 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, 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 that could be paid or otherwise provided to you such that the receipt of Parachute Payments would not give rise to any Excise Tax (the “Safe Harbor Amount”) then no Gross-Up Payment shall be deemed made to pay federal income taxes at you and the highest marginal rate amounts payable under this Agreement shall be reduced so that the total Parachute Payments are reduced to the Safe Harbor Amount. The reduction of federal income taxation 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 calendar year 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 which the this Agreement, provided that any 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. 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 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 taxeshereunder. 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 subsequently determined to be less than the amount taken into account hereunderunder Section 10 of this Agreement, you shall repay to the Company within ten thirty (30) days after the time that the amount of your receipt of notice of such reduction in Excise Tax is finally determined final determination or opinion 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 any interest received 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 (after taxes applicable thereto). c) You shall notify the rate provided Company 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 writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the existence or amount of which cannot be determined at the time 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 payment of taxes with respect to such claim is due). If the Company notifies you in writing prior to the 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 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 representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10, the Company shall make an additional gross-up payment 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 excess) within ten days after claim and may, at its sole option, either direct you to pay the time tax claimed and xxx for a refund or contest the claim in any permissible manner, and you agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs you to pay such claim and xxx for a refund, the Company shall advance the amount of such excess 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 finally determinedlimited 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 the Internal Revenue Service or 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 any Gross-Up Payment, and you hereby consent to such withholding; provided, that such withholding shall in no event place you in a less favorable after-tax position.

Excise Tax. In (a) Whether or not the event you become Executive becomes entitled to any amounts payable hereunder payments hereunder, if any of the payments or any other amounts benefits received or to be received by the Executive in connection with a change Change in control (whether Control or not such amounts are payable the Executive's termination of employment pursuant to the terms of this Agreement) Agreement or the Stock Option Plan (all such payments and benefits, excluding the Gross-Up Payment, being hereinafter referred to as the "Severance Total Payments"), if any of such Severance Payments are ) will be subject to excise tax imposed by section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax together with any such interest and penalties are hereinafter collectively referred to as the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 hereof Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by youthe Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and employment taxes and Excise Tax upon the payment provided for by this Section 6Gross-Up Payment, shall be equal to the Total Payments. . (b) For purposes of determining whether any of the Severance Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: , (iI) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination all of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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") Payments shall be treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the Code) unless, 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 nationally-recognized tax counsel ("Tax Counsel") selected by you the Company and reasonably acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or 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)(4section 280G(b)(4)(B) of the Code Code) in excess of the base amount within the meaning of Section 280G(b)(3) of the CodeBase Amount allocable to such reasonable compensation, 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 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, 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.the

Excise Tax. In (a) Whether or not the event you become Executive becomes entitled to any amounts payable hereunder payments hereunder, if any of the payments or any other amounts benefits received or to be received by the Executive in connection with a change Change in control (whether Control or not such amounts are payable the Executive's termination of employment pursuant to the terms of this Agreement) Agreement or the Stock Option Plan (all such payments and benefits, excluding the Gross-Up Payment, being hereinafter referred to as the "Severance Total Payments"), if any of such Severance Payments are ) will be subject to excise tax imposed by section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax together with any such interest and penalties are hereinafter collectively referred to as the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the Company shall pay to you at the time specified in Section 7 hereof Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by youthe Executive, after deduction of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax and employment taxes and Excise Tax upon the payment provided for by this Section 6Gross-Up Payment, shall be equal to the Total Payments. . (b) For purposes of determining whether any of the Severance Total Payments will be subject to the Excise Tax and the amount of such Excise Tax: , (iI) any other payments or benefits received or to be received by you in connection with a Change in Control or your termination all of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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") Payments shall be treated as "parachute payments" (within the meaning of Section section 280G(b)(2) of the Code) unless, 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 nationally-recognized tax counsel ("Tax Counsel") selected by you the Company and reasonably acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or 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)(4section 280G(b)(4)(B) of the Code Code) in excess of the base amount within the meaning of Section 280G(b)(3) of the CodeBase Amount allocable to such reasonable compensation, 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 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 the Executive shall be deemed to pay federal income taxes 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 your residencethe 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 subsequently finally determined to be less than the amount taken into account hereunderhereunder in calculating the Gross-Up Payment, you the Executive shall repay to the Company Company, within ten five (5) business days after following the time that the amount of such reduction in the Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the that portion of the Gross-Up Payment attributable to the Excise Tax and federal and federal, state and local income tax and employment taxes imposed on the Gross-Up Payment being repaid by you if the Executive), to the extent that such repayment results in a 5 5 reduction in the Excise Tax and/or federal and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income tax deduction) and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined determined, in accordance with the procedures set forth in Section 11(d) below, to exceed the amount taken into account hereunder (including by reason of 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 payment administrative or judicial proceedings concerning the existence or amount of which cannot be determined at liability for Excise Tax with respect to the time 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 make an additional gross-up payment 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 excessclaim and may either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any additional Excise Tax or income tax (including interest or penalties with respect thereto) within ten days 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 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 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 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 time 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 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 finally determinednot obtained by February 28, 2001, this Agreement shall become null and void as of such date.

Excise Tax. 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 you become entitled 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 amounts payable hereunder or liability for any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (or any successor provision thereto) or any similar federal, tax imposed by state or local law, or any interest or penalties with respect to such tax that may (such tax or taxes, together with any such interest or penalties, being hereafter be imposedcollectively referred to as the “Excise Tax”), then the Company aggregate amount of Parachute Payments payable to the Executive shall pay not exceed the amount which produces the greatest after-tax benefit 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, Executive after deduction of taking into account any Excise Tax on to be payable by the Total 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 (as hereinafter defined) and any federal, state and local income tax and taking into account the Excise Tax upon the payment provided for by this Section 6, payable in respect of such Parachute Payments). The Executive shall be equal permitted to provide to the Total Payments. For purposes of determining whether any Company written notice specifying which of the Severance Parachute Payments will be subject to reduction or elimination; provided, however, that to the Excise Tax 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 amount non-cash portion of such Excise Tax: (i) any other the Parachute Payments, in each case in reverse order beginning with payments or benefits received or which are to be received 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 you in connection with a Change in Control or your termination of employment (whether the Executive pursuant to the terms preceding sentence shall take precedence over the provisions of this Agreement or any other plan, arrangement or agreement with governing the Company, Executive’s rights and entitlements to 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 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 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, 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 determinedcompensation.

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "“Severance Payments")”) of this Addendum to the Employment Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "Gross-Up “Gross‑Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Employment Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company's independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee's residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the 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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(k)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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, 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change 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 ix xisallowed 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 xxxtiate 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment 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 provisions of this Agreement or otherwise. If, after the receipt by Employee of an amount advanced by Employer pursuant to Section 7(e)(2), a determination is made by the Internal Revenue Service or other appropriate taxing authority that Employee shall not be entitled to any refund with respect to such tax claimed and Employer does not notify Employee in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payments and other payments required to be paid hereunder. (h) With respect to any Employee Claim, if Employer fails to deliver an Election Notice to Employee within the 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 case of any Employee Claim that is defended or prosecuted to a Final Determination pursuant to the terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In 6.1 This Section 6 shall apply in the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed), the 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 any Excise Tax on the Total Payments Employee becomes entitled (as hereinafter defined) and any federal, state and local income tax and Excise Tax upon the payment provided for by without regard to this Section 6, shall be equal ) to the Total 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 one or more payments or benefits received rights (which payments or to be received by you in connection with a Change in Control rights shall include, without limitation, the vesting of an option or your termination of employment (other non-cash benefit or property), whether pursuant to the terms of this Agreement or any other plan, arrangement arrangement, or agreement with the Company, any Person whose actions result in a Change in Control Company or any Person affiliated with company (collectively, the Company “Total Payments”) which would be subject (in whole or such Personin part) to the excise tax imposed by Section 4999 of the Code (or any similar tax as may hereafter be imposed) (which, together with the Severance Payments, constitute “Excise Tax”). 6.2 In the "event that the Total Payments") shall be treated as "Payments cause the Employee’s “parachute payments" ” within the meaning of Section 280G(b)(2280G(h)(2) of the CodeCode (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, and all "the 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 to exceed one-hundred-ten-percent (110%) of the Trebled Base Amount, the Company shall pay to the Employee at the time specified below, an additional amount determined as set forth below (the “Gross-up Payment”). The Gross-up Payment shall be made only with respect to the amount which equals fifty-percent (50%) of the Employee’s “excess parachute payments" ” subject to the Excise Tax (the “Subject Amount”). For the avoidance of doubt, no Gross-up Payment shall be made with respect to the remaining fifty-percent (50%) of the amount 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 Subject Amount after reduction for any Excise Tax on the Subject Amount and any federal, state and local income or employment tax and Excise Tax payable by the Employee on the Gross-up Payment hereunder (provided that such amount is actually paid when due) shall be equal to the Subject Amount. 6.4 For purposes of determining whether any of the 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 unless, and except that to the extent that, in the written opinion of nationally-independent legal counsel, compensation consultants or auditors of nationally recognized tax counsel standing (“Independent Advisors”) selected by you such other payments or benefits the Company and reasonably acceptable to Employee, the Total Payments (in whole or in part) do not constitute parachute paymentsParachute Payments, or 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, Code or are otherwise not subject to the Excise Tax; tax; (iib) the The amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (Ai) the total amount of the Total Payments Payments, and (Bii) the total amount of “excess parachute payments payments” within the meaning of Section 280G(b)(1) of the Code (after applying Section 6(i6.4(a) hereofabove); and and (iiic) the The value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, 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 hereunderhereunder al the time the Gross-up Payment is made, you Employee shall repay to the Company within ten days after 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 otherwise realized as a benefit by Employee) the portion of the Gross-Up Payment attributable to up payment that would not have been paid if such reduction (plus the portion of Excise Tax had been utilized in initially calculating 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) 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 up Payment), the Company (i) shall make an additional grossGross-up payment in respect of such excess) within ten days after 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 if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Employee on such day an estimate, as determined by the Independent Advisors, of the minimum amount of such Gross-up Payment and shall pay the remainder of such payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as the amount thereof can be determined. In the event that the amount of the estimated 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 finally determinedmade, 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 xxx 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 a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Employee to pay any Excise Tax claimed to be due and xxx for a refund, the 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 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 statute of limitations relating to payment of taxes for the taxable year of Employee with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s 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 the case may be, any other issue raised by the 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 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 not be entitled to any refund 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. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "“Severance Payments")”) of this Addendum to the Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "“Excise Tax"”) imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this Agreement the Agreement, or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "“parachute payments" ” within the meaning of Section section 280G(b)(2) of the Code, and all "“excess parachute payments" ” within the meaning of Section section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of nationally-recognized tax counsel selected by you 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the “base amount within the meaning of Section 280G(b)(3) of the Codeamount” allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b)(l) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company’s independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee’s residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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 Any Gross-Up Payment attributable to such reduction (plus Payments will be made by the portion end of the Gross-Up Payment attributable to Employee’s taxable year next following the Excise Tax and federal and state and local income tax imposed on Employee’s taxable year in which 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 Employee remits 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 determinedrelated taxes.

Excise Tax. In the event you become that the Employee becomes entitled to any amounts payable hereunder or any other amounts the payments and benefits provided in connection with a change in control (whether or not such amounts are payable pursuant to this Agreement) Section 3 (the "Severance Payments")) of this Addendum to the Employment Agreement, if any of such the Severance Payments are will be subject to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposed)Code, the Company shall pay to you at the time specified in Section 7 hereof Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by youthe Employee, after deduction of any Excise Tax on the Total Severance Payments (as hereinafter defined) and any federalFederal, state and local income and employment tax and Excise Tax upon the payment payments and benefits provided for by Section 5 of this Section 6Addendum to the Employment Agreement, shall be equal to the Total 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 benefits received or to be received by you the Employee in connection with a Change change in Control ownership or your 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 without Cause or by the Employee for Good Reason (whether pursuant to the terms of this the Employment Agreement or any other plan, arrangement or agreement with the Company, any Person person whose actions result in a Change in Control change of control or any Person person affiliated with the Company or such Person) (which, together with the Severance Payments, constitute the "Total Payments"person) shall be treated as "parachute payments" within the meaning of Section section 280G(b)(2) of the Code, and all "excess parachute paymentspayment" within the meaning of Section 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 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 rendered, within the meaning of Section 280G(b)(4section 280G(b)(4)(B) of the Code Code, in excess of the "base amount within the meaning of Section 280G(b)(3) of the Codeamount" allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax; , (ii) the amount of the Total 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 Total Severance Payments and or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1section 280G(b) (1) of the Code (after applying Section 6(i) hereofclause (i); , above), and (iii) the value of any non-cash benefits or any deferred payments payment or benefit shall be determined by a nationally-recognized accounting firm selected by you the Company's independent auditors in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, you the Employee shall be deemed to pay federal Federal income taxes at the highest marginal rate of federal 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 residencethe Employee's residence on the date of termination, net of the maximum reduction in federal Federal income taxes which could be obtained from the 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. In the event you become entitled to any amounts payable hereunder or any other amounts in connection with a change in control (whether or not such amounts are payable pursuant to a) For purposes of this Agreement) (the "Severance Payments"), if any of such Severance Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federal, state or local tax that may hereafter be imposedSubsection 2a(vi), the following terms shall have the following meanings: (I) Payment shall mean any payment or distribution (or acceleration of benefits) by the 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 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 or for by this Section 6, shall be equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment benefit (whether paid or payable or distributed or distributable (or accelerated) pursuant to the terms of this Agreement or otherwise, but determined without regard to any other planadditional payments required under this Subsection 2a(vi)). In addition, arrangement or agreement with Payment shall mean the Company, amount of income deemed to be received by you as a result of the acceleration of the exercisability of any Person whose actions result in a Change in Control or any Person affiliated with of 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 Personexcise tax. (III) Income Tax shall mean all taxes other than the Excise Tax (whichincluding any interest or penalties imposed with respect to such taxes) including, together with without limitation, any income and employment taxes imposed by any federal (including (i) FICA and Medicare taxes, and (ii) the Severance Paymentstax resulting from the loss of any federal deductions or exemptions which would have been available to you but for receipt of the Payment), constitute state, local, commonwealth or foreign government. (b) In the "Total Payments") event it shall be treated as "determined that the amount of the Payments payable to you would constitute an “excess parachute payments" payment,” within the meaning of Section 280G(b)(2) 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless and the present value of such Payments (calculated in a manner consistent with that set forth 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 applicable regulations promulgated under Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) 280G of the Code, ) is equal to or are otherwise not 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. (iic) In the event it shall be determined that the amount of the Total Payments payable to you is more than 105% greater than the threshold at which shall be treated as subject to such amount becomes an “excess parachute payment,” then the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments payable to you shall not be reduced in any way 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 any deferred payments or benefit you shall be determined by entitled to receive an additional payment from the Company (a nationally“Gross-recognized accounting firm selected Up Payment”) in an amount such that after payment by you in accordance with the principles of Sections 280G(d)(3) Income Tax and (4) of the Code. For purposes of determining the amount of Excise Tax imposed upon 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 retain an 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 equal to such reduction the Excise Tax imposed upon the Payment. (plus the portion of the d) All determinations required to be made under this Subsection 2a(vi), including whether and when a Gross-Up Payment attributable to or a Reduction is required and the Excise Tax and federal and state and local income tax imposed on the amount of such Gross-Up Payment being repaid 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 if such repayment results in a 5 5 reduction in Excise Tax and/or federal and state and local income tax deductionwithin fifteen (15) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) business days of the Codereceipt 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 event that Firm retained by the Excise Tax is determined to exceed Company be serving as accountant, auditor or consultant for the amount taken into account hereunder (including by reason of any payment individual, entity or group affecting the existence or amount of which cannot be determined at the time 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 Company shall make an additional gross-up payment in respect of such excessto you within thirty (30) within ten days after the time that the amount your receipt of such excess is finally determined.the

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the individually referred to herein as a "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount two or more of such Excise Tax: (i) any other additional payments or benefits received or being referred to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 herein as "Total Gross-Up Payments") shall be treated in an amount such that after payment by Employee of all taxes (as "parachute payments" within the meaning of defined in Section 280G(b)(27(k)) 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 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 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 imposed upon the Gross-Up Payment, you shall 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 deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the made under this Section 7(b), including whether a Gross-Up Payment is to be made required 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, 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 Company shall make an additional gross-up payment in respect termination of Employee's employment, if applicable, or such excess) within ten days after the other time that the amount of such excess or times as is finally determined.reasonably requested by

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the 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 the net amount retained after payment by you, after deduction Employee of any Excise Tax on the Total Payments all taxes (as hereinafter defineddefined in Section 7(k)) and any federal, state and local income tax and Excise Tax imposed upon the payment provided for by this Section 6Gross-Up Payment, shall be Employee retains an amount of such Gross-Up Payment equal to the Total Payments. For purposes of determining whether any of the Severance Payments will be subject 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: 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 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 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 payments proceeding which, if pursued successfully, could result in or benefits received 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 received by you 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 Change 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 Control his sole and absolute discretion, any other issue raised by the Internal Revenue Service or your termination 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 employment all developments and events relating to any such Employee Claim (whether 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 terms of this Agreement 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 any other plan, arrangement resulting from or agreement incurred in connection with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (whichEmployee Claim that have not theretofore been paid by Employer to Employee, together with the Severance Paymentscosts and expenses, constitute 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. In the "Total Payments"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 taxes arising or resulting from or incurred in connection with such Employee Claim at least ten calendar days before the 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 treated as "parachute payments" made within the meaning 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 order by a court or other tribunal with appropriate jurisdiction, 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 under Section 280G(b)(2) 7121 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 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; (iiC) the amount any disallowance of the Total Payments which shall be treated as subject a claim for refund or credit in respect to the Excise Tax shall be equal to the lesser an overpayment of tax unless a suit is filed on a timely basis; or (AD) 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 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, 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 final disposition by reason of any payment the existence or amount expiration of which cannot be determined at the time all applicable statutes 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 determinedlimitations.

Excise Tax. In (a) If both Parent and PGI are not an entity whose stock is 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 Internal Revenue Code of 1986, as amended (the “Code”) or a loss of deductibility under Section 280G of the Code, including, to the extent Executive agrees to waive Executive’s entitlement to potential “parachute payments” (as 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 “change in control” under Regulation 1.280G occurs following the Effective Date, then anything in this Agreement to the contrary notwithstanding, in the event you become entitled it shall be determined that any payment, benefit or distribution to any amounts payable hereunder or any other amounts in connection with a change in control (whether for Executive’s benefit or not such amounts are payable pursuant to this Agreement) (the "Severance Payments"), if any of such Severance Payments are acceleration thereof would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code (or any similar federalinterest or penalties with respect to such excise tax (collectively, state such excise tax, together with any such interest or local tax that may hereafter be imposedpenalties, 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 “Total Payments”), then, after taking into account any reduction in the Company Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement, the cash severance payments shall pay first be reduced, and the noncash severance payments shall thereafter be reduced, to you at the time specified in Section 7 hereof an additional amount extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if (the "Gross-Up Payment"i) such that the net amount retained by youof such Total Payments, as so reduced (and after deduction subtracting the net amount of any Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income tax taxes on such reduced Total Payments and Excise Tax upon after taking into account the payment provided for by this Section 6, shall be phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than or equal to the Total 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 benefits received or to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 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 net amount of the such Total Payments which shall be treated as subject to without such reduction (but after subtracting the Excise Tax shall be equal to the lesser of (A) the total net 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 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 Paymentfederal, 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 on such Total Payments 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 Executive would be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment subject in respect of such excessunreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments); provided, however, that Executive may elect to have the noncash severance payments reduced (or eliminated) within ten days after prior to any reduction of the time that cash severance payments. Executive shall remain 075759-0006-13471-Active.14024570.4 solely liable for all income taxes, Excise Tax, or other amounts assessed on any payments or benefits and nothing in this Agreement shall be interpreted as obligating the amount PGI, or any successors thereto, to pay (or reimburse Executive for) any income taxes, Excise Tax, or other taxes or amounts assessed against or incurred by Executive in connection with Executive’s receipt of any such excess is finally determinedpayments or benefits.

Excise Tax. In (a) Anything in this Agreement to the contrary notwithstanding, in the event you become entitled to it shall be determined that any amounts payable hereunder payment or distribution by, or benefit from, Employer or any other amounts in connection with a change in control (of its affiliates to or for the benefit of Employee, whether paid or not such amounts are payable or distributed or distributable pursuant to the terms of this Agreement) Agreement or otherwise (the any such payments, distributions or benefits being individually referred to herein as a "Severance Payment," and any two or more of such payments, distributions or benefits being referred to herein as "Payments"), if any of such Severance Payments are would be subject to the excise tax (the "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 similar federalinterest in respect of such penalties, state additions to tax or local tax that may hereafter be imposedadditional amounts, being collectively referred herein to as the "Excise Tax"), the Company then Employee shall pay be entitled to you at the time specified in Section 7 hereof receive an additional amount payment or payments (the individually referred to herein as a "Gross-Up Payment") such that the net amount retained by you, after deduction of 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 the Total Payments. For purposes of determining whether any of the Severance Payments will be subject to the Excise Tax and the amount two or more of such Excise Tax: (i) any other additional payments or benefits received or being referred to be received by you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the 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 herein as "Total Gross-Up Payments") shall be treated in an amount such that after payment by Employee of all taxes (as "parachute payments" within the meaning of defined in Section 280G(b)(27(k)) 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 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 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 imposed upon the Gross-Up Payment, you shall 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 deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the made under this Section 7(b), including whether a Gross-Up Payment is to be made required 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.initially be made, at Employer's expense, by nationally recognized tax counsel selected by Employer ("Tax