Common use of Excise Tax Clause in Contracts

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this Agreement. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment or distribution to or for the benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to 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 personadditional payments required under this Section 16) (all such payments and benefits being hereinafter called a "Total PaymentsTermination Payment"), such that the Executive will ) would be subject (in whole or in part) to the excise tax imposed under Code by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the "Excise Tax") on such payments and benefits), then the Company Employee shall pay be entitled to the Executive receive an additional amount payment (the a "Gross-Up Payment") in an amount such that the net amount retained after payment by the ExecutiveEmployee of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of the including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax and any federal, state and local income tax on imposed upon the Gross-Up Payment, will be the Employee retains an amount of the Gross-Up Payment equal to the total amount of payments required to be paid pursuant to this Agreement. Excise Tax imposed upon the Payments. (b) For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the ExecutiveEmployee's residence on such datethe Termination Date, net of the maximum deduction reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or . If the Company may requestExcise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Employee's termination of employment, prior Employee shall repay to the Company, at the time any payments under this Agreement are madethat the amount of such reduction in Excise Tax is finally determined, a determination of whether any or all the portion of the Total Payments will be subject Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up PaymentPayment being repaid by Employee to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. If 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 shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Employee with respect to such excess) at the time that the amount of such excess is finally determined. Employee and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Termination Payments. (c) All determinations required to be made under this Section 16, including (without limitation) whether and when a determination Gross-Up Payment is requestedrequired and the amount of such Gross-Up Payment and the assumptions to be used in arriving at such determination, it shall be made promptly, at the Company's expense, by tax counsel a certified public accounting firm selected by the Executive Company and approved reasonably acceptable to Employee (the "Accounting Firm"), which shall be retained to provide detailed supporting calculations both to the Company and Employee within 15 business days of the receipt of notice from Employee that there has been a Termination Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be paid solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 16, shall be paid by the Company to Employee within five (with such approval 5) days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and Employee. As a result of the uncertainty 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 being unreasonably withheldhave been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. If Employee 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 determination Underpayment shall be conclusive and binding on both parties. The promptly paid by the Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at for the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax mattersbenefit of Employee.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control Change of Control or a the termination of the Executive's ’s 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 Change of Control or any person affiliated with the Company or such person) (all such payments and benefits being hereinafter called "“Total Payments"), such that the Executive ”) will be subject (in whole or in part) to the excise tax (the “Excise Tax”) imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("Excise Tax"the “Code”), then, subject to the provisions of Section 8(c)(ii) on such payments and benefitshereof, then the Company shall will pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the any Excise Tax on the Total Payments and any federal, state and local income tax on and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 8(c)(i), will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or In the Company may requestevent that, prior after giving effect to any redeterminations described in Section 8(c)(iv) hereof, a reduction in the Total Payments to the time largest amount that would result in no portion of the Total Payments being subject to the Excise Tax (after taking into account any payments under this Agreement are madereduction in the Total Payments provided by reason of Section 280G of the Code in such other plan, arrangement or agreement) would produce a net amount (after deduction of the net amount of federal, state and local income tax on such reduced Total Payments) that would be greater than the net amount of unreduced Total Payments (after deduction of the net amount of federal, state and local income tax and the amount of Excise Tax to which the Executive would be subject in respect of such Total Payments), then Section 8(c)(i) hereof will not apply and the Total Payments will be so reduced. (iii) The determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, and the amount of such Excise Tax will be made by the Company’s independent auditors. The Company will provide the Executive with its calculation of the amounts referred to in this Section 8(c) and such supporting materials as are reasonably necessary for the Executive to evaluate the Company’s calculations. If the Executive disputes the Company’s calculations (in whole or in part), the reasonable opinion of the Company’s independent auditors with respect to the matter in dispute will prevail. (iv) In the event that (A) the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of payment of the Total Payments and (B) after giving effect to such redetermination, the Total Payments are reduced pursuant to Section 8(c)(ii) hereof, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that (X) the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment) and (Y) after giving effect to such redetermination, the Total Payments are not reduced pursuant to Section 8(c)(ii) hereof, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any additional taxes payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined. If The Company shall also reimburse the Executive for any expenses (including interest and penalties) incurred in any such a determination is requested, it additional Gross-Up redetermination to the extent permitted under Section 409A. (All reimbursements of expenses incurred in connection with such additional Gross-Up redetermination shall be made promptlywithin thirty (30) days after the Executive incurs such expense, at the amounts reimbursed in a tax year will not affect such expenses eligible for reimbursement in any other tax year, and such reimbursement period shall be effective so long as the applicable statute of limitations for such Gross-Up redetermination is open. Such reimbursements are intended to comply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A)). (v) The Executive shall notify the Company in writing of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to the refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company's expense. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by tax counsel 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 jointly selected by the Executive and approved by the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim. The Company shall reimburse the Executive for all costs and expenses (including legal fees and additional interest and penalties to the extent permitted under 409A) incurred in connection with such approval contest. All reimbursements of such expenses shall be made within 30 days after the Executive incurs such expense, the amounts reimbursed in a tax year will not being unreasonably withheld)affect such expenses eligible for reimbursement in any other tax year, and such determination reimbursement period shall be conclusive effective so long as the applicable statute of limitations for such claim is open. Such reimbursements are intended to comply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A). (vi) Without limitation on the foregoing, the Company shall control all audits and binding on both parties. The Company proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax in any permissible manner, and the Executive agrees to provide prosecute such contest to a determination before any information reasonably requested by 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 tax counsel. Tax counsel may engage accountants and xxx for a refund, the Company shall reimburse the Executive within thirty (30) days after the Executive pays such taxes (including interest or other experts, at the Company's expense, penalties with respect thereto to the extent deemed necessary or advisable for them to reach a determinationpermitted under 409A). For these purposesAll reimbursements of such expenses shall be made within thirty (30) days after the Executive incurs such expense, the term "amounts reimbursed in a tax counsel" year will not affect such expenses eligible for reimbursement in any other tax year, and such reimbursement period shall mean be effective so long as the applicable statute of limitations for such claim is open. Such reimbursements are intended to comply with Treasury Regulation Section 1.409A-3(i)(1)(iv)(A). The Company’s control of the contest shall be limited to issues with respect to which such a law firm with expertise Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. (vii) To the extent that a Gross-Up Payment is determined to be payable pursuant to this Section 8(c), such payment must be made no later than the end of the taxable year immediate following the taxable year in federal income tax matterswhich the taxes described above are remitted by the Executive to the taxing authority.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax") ”), on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (i) 5.1 In the event that any payment or benefit received or to be that is either received by the Executive in connection with a change in control or a termination of paid by the Executive's employment (whether Company on his behalf, or any other benefit provided to Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, Company or any other person whose actions result in payments or benefits are treated as contingent on a change of ownership or control of the Company (or in control the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such personperson (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (all such payments and benefits being hereinafter called "Total Payments"collectively the “Payment”), such that the Executive will be is subject (in whole or in part) to the excise tax imposed under Code 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, hereinafter collectively referred to as the “Excise Tax") on such payments and benefits”), then the Company Executive shall pay be entitled to the Executive receive an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax and any federal, state and local income tax on imposed upon the Gross-Up Payment, will be Executive retains an amount of the Gross-Up Payment equal to the total Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 5 if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed the lesser of A) 110% of the greatest amount of payments that could be paid to Participant without giving rise to any Excise Tax (the “Safe Harbor Amount”) or B) $50,000, then no Gross-Up Payment shall be made to Executive and the amounts payable under this Plan shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. 5.2 All determinations required to be paid pursuant made under this Section 5 including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to this Agreement. For be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within ten (10) business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of the any Gross-Up Payment, the Executive shall be deemed to pay federal income taxes tax at the highest marginal rate of federal income taxation rates applicable to individuals in the calendar year in which the any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rate of taxation effective rates applicable to individuals in the state and or locality of in which the Executive's residence on Executive incurs income taxes in the calendar year in which any such dateGross-Up Payment is to be made, net of the maximum deduction reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. (ii) The Executive or , taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by the Company may request, prior to the time any payments under this Agreement are made, a Executive (or to the appropriate taxing authority on the Executive’s behalf) within thirty (30) days following the date upon which the Executive provides written documentation that the related excise taxes have been remitted to the appropriate taxing authority (with the determination of whether any or all the date of such payment made by the Company at its sole discretion); provided, that the Gross-Up Payment shall be paid no later than the end of the Total Payments will be subject Executive’s taxable year next following the Executive’s taxable year in which the related excise taxes are remitted to the appropriate taxing authority (the “Required Gross-Up Payment Date”). If the Accounting Firm determines that no Excise Tax andis payable by the Executive, if soit shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of such Excise Tax the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) the Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 5.3 and the federalExecutive thereafter is required to make a payment of any Excise Tax, state the Accounting Firm shall determine the amount of the Underpayment that has occurred and local income tax imposed on any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive as soon as administratively practicable following the date upon which the amount of the Underpayment is determined by the Accounting Firm (with the determination of the date of such payment made by the Company at its sole discretion), but in any event, no later than the Required Gross-Up Payment Date. 5.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. If such a determination is requested, it Such notification shall be made promptly, at the Company's expense, by tax counsel selected by given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and approved by shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 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 approval not being unreasonably withheldclaim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, and such determination the Executive shall be conclusive and binding on both parties. The (i) give the Company agrees to provide any information reasonably requested by the Company relating to such tax counselclaim, (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 to effectively 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. Tax counsel may engage accountants or other expertsWithout limitation on the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or 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, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's expense’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Participant 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. 5.4 If, after the receipt by the Executive of an amount paid or advanced by the Company pursuant to this Section 5, the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, the Executive shall promptly pay to the extent deemed necessary Company the amount of such refund received (together with any interest paid or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matterscredited thereon after taxes applicable thereto).

Excise Tax. (i) 10.1 In the event that any payment a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, by court decision, or by independent tax counsel described in section 10.2 below, that the aggregate amount of any person whose actions result in a change in control payment made to Executive (a) hereunder, and (b) pursuant to any plan, program or any person affiliated with policy of the Company in connection with, on account of, or such person) as a result of, a Change in Control (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then or any successor section thereof, Executive shall be entitled to receive from the Company shall pay Company, in addition to the Executive an additional amount any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment, so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in section 9.1 above. 10.2 Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to section 10.1. Prior to the Executive shall be deemed to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by independent tax counsel selected by the Executive and approved by the Company (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the Company's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither the Company nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. 10.3 In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to sections 10.1 and 10.2 above, the Company shall pay to Executive, or Executive shall pay to the Company, as the case may be, the full amount necessary to make either Executive or the Company whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), is in an amount such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions to tax payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess or such portion is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company's control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Tax, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "“Total Payments"), such that the Executive ”) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "“Gross-Up Payment") ”), sufficient to cover the full cost of such excise taxes and Executive’s federal, state and local income and employment taxes on this additional payment, so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), is in an amount such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions to tax payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess or such portion is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Tax, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (i) In the event that If any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (whether pursuant payments or benefits due to the terms of Employee under this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions would otherwise result in a change in control or liability for any person affiliated with the Company or such personexcise taxes pursuant to Internal Revenue Code (“Code”) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("“Excise Tax"”) on (whether at the time of payment or upon a later IRS audit), the Company and Employee agree to use commercially reasonable efforts to restructure, in a manner reasonably acceptable to the Company and Employee, such payments and benefitsor benefits due to Employee so that such Excise Tax is eliminated or minimized to the extent permitted by applicable law. If, then despite the use of commercially reasonable efforts, the Company shall pay and Employee are unable, consistent with applicable law, to agree on the restructuring of the payments or benefits due to Employee under this Agreement to eliminate such Excise Tax consistent with legal requirements, the Company will reimburse Employee for the amount of such Excise Tax plus all federal, state and local taxes applicable to the Executive Company’s payment of such Excise Tax, including any additional taxes due under Section 4999 of the Code with respect to payments made pursuant to this provision. Calculations for these purposes will assume the highest marginal rate for individuals applicable at the time of calculation. The intent of this section is that the Company will pay Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, Employee after deduction of the (i) any Excise Tax imposed on any such payment or benefit and (ii) any Excise Tax, federal, state and or local income tax income, and/or payroll taxes imposed on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this Agreement. For purposes of determining the amount of such payment or benefit reduced by all applicable taxes on such amount other than the Excise Tax; provided, that the Gross-Up Payment, the Executive shall be deemed payment will not include any additions to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at Employee by reason of Section 409A of the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax mattersCode.”

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment, so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (ia) In the event that a Change in Control ---------- shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment, so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which she gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive Employee in connection with a change in control or a termination of the Executive's Employee’s employment (whether pursuant to the terms of this Second Amendment to Amended and Restated 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive Employee will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive Employee an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the ExecutiveEmployee, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's Employee’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive Employee or the Company may request, prior to the time any payments under this Second Amendment to Amended and Restated Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive Employee and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Employee will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Employee with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Employee or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Employee by a taxing authority, Employee shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim, the Employee shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Employee and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Employee harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Employee to pay the tax claimed and xxx for a refund or contest the tax in any permissible manner, and the 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 the Company shall determine; provided, however, that if the Company directs the Employee to pay such tax and xxx for a refund, the Company shall advance the amount of such payment to the Employee, (including interest or penalties with respect thereto) and shall indemnify and hold the Employee harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Employee fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Employee shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of Change in Control, shall be made pursuant to Code Section 280G.

Excise Tax. (i) 5.1 In the event that any payment or benefit received or to be that is either received by the Executive in connection with a change in control or a termination of paid by the Executive's employment (whether Company on his behalf, or any other benefit provided to Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, Company or any other person whose actions result in payments or benefits are treated as contingent on a change of ownership or control of the Company (or in control the ownership of a substantial portion of the assets of the Company) or any person affiliated with the Company or such personperson (but only if such payment or other benefit is in connection with the Executive’s employment by the Company) (all such payments and benefits being hereinafter called "Total Payments"collectively the “Payment”), such that the Executive will be is subject (in whole or in part) to the excise tax imposed under Code 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, hereinafter collectively referred to as the “Excise Tax") on such payments and benefits”), then the Company Executive shall pay be entitled to the Executive receive an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by the ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax and any federal, state and local income tax on imposed upon the Gross-Up Payment, will be Executive retains an amount of the Gross-Up Payment equal to the total Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section 5 if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payment does not exceed the lesser of A) 110% of the greatest amount of payments that could be paid to Participant without giving rise to any Excise Tax (the “Safe Harbor Amount”) or B) $100,000, then no Gross-Up Payment shall be made to Executive and the amounts payable under this Plan shall be reduced so that the Payment, in the aggregate, is reduced to the Safe Harbor Amount. 5.2 All determinations required to be paid pursuant made under this Section 5 including whether and when a Gross-Up Payment is required and the amount of such Gross-Up Payment and the assumptions to this Agreement. For be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Executive within ten (10) business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of the any Gross-Up Payment, the Executive shall be deemed to pay federal income taxes tax at the highest marginal rate of federal income taxation rates applicable to individuals in the calendar year in which the any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest marginal rate of taxation effective rates applicable to individuals in the state and or locality of in which the Executive's residence on Executive incurs income taxes in the calendar year in which any such dateGross-Up Payment is to be made, net of the maximum deduction reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. (ii) The Executive or , taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 5, shall be paid by the Company may request, prior to the time any payments under this Agreement are made, a Executive (or to the appropriate taxing authority on the Executive’s behalf) within thirty (30) days following the date upon which the Executive provides written documentation that the related excise taxes have been remitted to the appropriate taxing authority (with the determination of whether any or all the date of such payment made by the Company at its sole discretion); provided, that the Gross-Up Payment shall be paid no later than the end of the Total Payments will be subject Executive’s taxable year next following the Executive’s taxable year in which the related excise taxes are remitted to the appropriate taxing authority (the “Required Gross-Up Payment Date”). If the Accounting Firm determines that no Excise Tax andis payable by the Executive, if soit shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of such Excise Tax the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) the Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 5.3 and the federalExecutive thereafter is required to make a payment of any Excise Tax, state the Accounting Firm shall determine the amount of the Underpayment that has occurred and local income tax imposed on any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive as soon as administratively practicable following the date upon which the amount of the Underpayment is determined by the Accounting Firm (with the determination of the date of such payment made by the Company at its sole discretion), but in any event, no later than the Required Gross-Up Payment Date. 5.3 The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. If such a determination is requested, it Such notification shall be made promptly, at the Company's expense, by tax counsel selected by given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim and approved by shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 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 approval not being unreasonably withheldclaim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, and such determination the Executive shall be conclusive and binding on both parties. The (i) give the Company agrees to provide any information reasonably requested by the Company relating to such tax counselclaim, (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 to effectively 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. Tax counsel may engage accountants or other expertsWithout limitation on the foregoing provisions of this Section 5.3, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or 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, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's expense’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Participant 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. 5.4 If, after the receipt by the Executive of an amount paid or advanced by the Company pursuant to this Section 5, the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, the Executive shall promptly pay to the extent deemed necessary Company the amount of such refund received (together with any interest paid or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matterscredited thereon after taxes applicable thereto).

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this Agreement. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.Total

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(i) and (ii) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Code Section 280G.

Excise Tax. (ia) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (regardless of cause and 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and or local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iib) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's employment (whether pursuant to the terms of this Amended and Restated 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Amended and Restated Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "“Total Payments"), such that the Executive ”) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "“Gross-Up Payment") ”), sufficient to cover the full cost of such excise taxes and Executive’s federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's Employer’s expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the Company's expense, Employer’s expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "“independent tax counsel" ,” as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm’s announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.to

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the

Excise Tax. (ia) In the event that a Change in Control shall occur, and a final determination is made by legislation, regulation, ruling directed to Executive or Employer, by court decision, or by independent tax counsel described in subsection (b) next below, that the aggregate amount of any payment made to Executive (1) hereunder, and (2) pursuant to any plan, program or benefit received or to be received by the Executive policy of Employer in connection with with, on account of, or as a change result of, such Change in control or a termination of the Executive's employment Control (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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive ) will be subject (in whole or in part) to the excise tax imposed under Code provisions of Section 4999 ("Excise Tax") on such payments and benefitsof the Code, then the Company or any successor section thereof, Executive shall pay be entitled to the Executive an additional amount receive from Employer, in addition to any other amounts payable hereunder, a lump sum payment (the "Gross-Up Payment") ), sufficient to cover the full cost of such excise taxes and Executive's federal, state and local income and employment taxes on this additional payment, so that the net amount retained by the Executive, after deduction the payment of all such excise taxes on the Excise Tax Total Payments, and all federal, state and local income and employment taxes and excise taxes on the Gross-Up Payment, shall be equal to the Total Payments. The Total Payments, however, shall be subject to any federal, state and local income tax on and employment taxes thereon. For this purpose, Executive shall be deemed to be in the highest marginal rate of federal, state and local taxes. The Gross-Up Payment, will Payment shall be equal to made at the total amount of same time as the payments required to be paid pursuant to this Agreement. For purposes of determining described in subsections 3(a)(1) and (2) above. (b) Employer and Executive shall mutually and reasonably determine the amount of the Gross-Up Payment, Payment to be made to Executive pursuant to the Executive shall be deemed preceding subsection. Prior to pay federal income taxes at the highest marginal rate making of federal income taxation in the calendar year in which the any such Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such datePayment, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company either party may request, prior to the time any payments under this Agreement are made, request a determination of whether any or all of the Total Payments will be subject as to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the CompanyEmployer's expense, by independent tax counsel selected by the Executive and approved by the Company Employer (with such which approval shall not being unreasonably be withheld), and such determination shall be conclusive and binding on both the parties. The Company agrees to Employer shall provide any such information as such counsel may reasonably requested by request, and such tax counsel. Tax counsel may engage accountants or other experts, experts at the CompanyEmployer's expense, expense to the extent deemed that they deem necessary or advisable for to enable them to reach a determination. For these purposes, the The term "independent tax counsel," as used herein, shall mean a law firm with of recognized expertise in federal income tax mattersmatters that has not previously advised or represented either party. It is hereby agreed that neither Employer nor Executive shall engage any such firm as counsel for any purpose, other than to make the determination provided for herein, for three years following such firm's announcement of its determination. (c) In the event the Internal Revenue Service subsequently adjusts the excise tax computation made pursuant to subsections 4(a) and (b) above, Employer shall pay to Executive, or Executive shall pay to Employer, as the case may be, the full amount necessary to make either Executive or Employer whole had the excise tax initially been computed as subsequently adjusted, including the amount of any underpaid or overpaid excise tax, and any related interest and/or penalties due to the Internal Revenue Service. 5.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's ’s 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) (all such payments and benefits being hereinafter called "“Total Payments"”), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 of the Internal Revenue Code of 1986, as amended ("“Excise Tax"”) on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payment. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's ’s residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's ’s expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's ’s expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "“tax counsel" ” shall mean a law firm with expertise in federal income tax matters. (iii) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive will repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment, without any interest thereon. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company will make an additional Gross-Up Payment in respect of such excess and in respect of any portion of the Excise Tax with respect to which the Company had not previously made a Gross-Up Payment (plus any interest, penalties or additions payable by the Executive with respect to such excess and such portion) at the time that the amount of such excess is finally determined, without any interest thereon. (iv) Each party agrees to notify the other party, in writing, of any claim that, if successful, would require the payment by the Company of a Gross-Up Payment or might entitle the Company to a refund of all or part of any previous Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive or Company is informed in writing of such claim or otherwise becomes aware of such claim. If notice of the claim arose as a result of a claim made against the Executive by a taxing authority, Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which she gives notice to the Company. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to reasonably participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including legal fees and additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (v) Notwithstanding the foregoing, the Company shall control all audits and proceedings taken in connection with any claim, audit or proceeding involving Excise Taxes or Gross-Up Payments and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of any such claim, audit or proceeding and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the tax 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 tax and xxx for a refund, the Company shall advance the amount of such payment to the Executive, (including interest or penalties with respect thereto) and shall indemnify and hold the Executive harmless, on an after-tax basis, for 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. The Company shall be required to consult with and keep the Executive fully apprised of developments and actions being considered or taken with respect to such claim, audit or proceeding. The Company’s control of the contest shall be limited to issues with respect to which such a Gross-Up Payment would be payable or refundable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue. Each party agrees to keep the other party fully apprised of developments concerning such claim, audit or proceeding and to cooperate with the other in good faith in order to effectively resolve such claim, audit or proceeding. (vi) For purposes of this Subsection (c), a determination of whether a payment is subject to Excise Taxes, including but not limited to, a determination of change in control, shall be made pursuant to Section 280G of the Internal Revenue Code of 1986, as amended.

Excise Tax. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a change in control or a termination of the Executive's 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) (all such payments and benefits being hereinafter called "Total Payments"), such that the Executive will be subject (in whole or in part) to the excise tax imposed under Code Section 4999 ("Excise Tax") on such payments and benefits, then the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax and any federal, state and local income tax on the Gross-Up Payment, will be equal to the total amount of payments required to be paid pursuant to this AgreementTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on such date, net of the maximum deduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) The Executive or the Company may request, prior to the time any payments under this Agreement are made, a determination of whether any or all of the Total Payments will be subject to the Excise Tax and, if so, the amount of such Excise Tax and the federal, state and local income tax imposed on the Gross-Up Payment. If such a determination is requested, it shall be made promptly, at the Company's expense, by tax counsel selected by the Executive and approved by the Company (with such approval not being unreasonably withheld), and such determination shall be conclusive and binding on both parties. The Company agrees to provide any information reasonably requested by such tax counsel. Tax counsel may engage accountants or other experts, at the Company's expense, to the extent deemed necessary or advisable for them to reach a determination. For these purposes, the term "tax counsel" shall mean a law firm with expertise in federal income tax matters.