Common use of Excise Tax Clause in Contracts

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “Payment”) would be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; and

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income and all federal, state and local income tax, employment tax taxes and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 510(d), including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 10(d), shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAuditor’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “UnderpaymentRecalculated Amount”). If the Company exhausts its remedies pursuant to Section 5(f) and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefit; andthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment.

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by the Company, any of the Company’s affiliates, one or more trusts established by the Company for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of the Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code by reason of being “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment or payments (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 15(a) hereof, all determinations required to be made under this Section 515, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by the Accountants Company, and reasonably satisfactory to the Executive (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment the Company and the Executive within fifteen (15) business days of the receipt closing of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in ownership or control that with other events results in the imposition of the Excise Tax. If Company, or such earlier time as is requested by the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)Company. All fees and expenses of the Accountants Accounting Firm shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 15, shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive (B) good faith interpretations of or to the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations appropriate taxing authority on deductions based upon the amount of the Executive’s adjusted gross income), and behalf) when due immediately prior to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal the date the Executive is required to those disallowed because make payment of any Excise Tax or other taxes. If the inclusion of the Gross-Up Payment in Accounting Firm determines that no Excise Tax is payable by the Executive’s adjusted gross income, it shall so indicate to the Executive in writing. Any determination by the Accountants Accounting Firm shall be binding upon the Company and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) the Executive is lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “Underpayment”). If In the event that the Company exhausts its remedies pursuant to Section 5(f15(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify the Company and the Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to the Executive) shall be promptly paid by the Company to or for the benefit of the Executive within five (5) business days after receipt of such determination and calculations. (c) 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. 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 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 he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies 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 which is in the Executive’s possession reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order 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 and shall indemnify and hold the Executive harmless, on an after-tax basis, for his benefitany Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 15(c), 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; andprovided, further, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall pay the amount of such claim to the Executive, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); 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 control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by the Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 15, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by the Executive of an amount paid by the Company pursuant to this Section 15, the Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, the Executive shall promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the Xxxxxxxx-Xxxxx Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Company, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 15 shall again be applied based upon such recalculation.

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payment”) "PAYMENTS"), would be constitute an "excess parachute payment" within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended ("CODE"), subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “"EXCISE TAX"), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an "excess parachute payment," then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a "REDUCTION") to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax”), . (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an "excess parachute payment," then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the “Grossa "GROSS-Up Payment”UP PAYMENT") in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income and all federal, state and local income tax, employment tax taxes and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 510(d), including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company "AUDITOR"); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 10(d), shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomeAuditor's determination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor's initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f"RECALCULATED AMOUNT") and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefit; andthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor's recalculation the Gross-Up Payment.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive Employee or for the ExecutiveEmployee’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code or any successor provision (the “Excise Tax”), then the Executive Employee shall be entitled to receive from the Company Choice an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g)Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All determinations required to be made under this Section 5Section, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, determinations shall be made in good faith by the Accountants (as defined below), which Choice shall request provide the Executive Employee and the Company Choice with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of at the receipt of notice from time the Executive or Employee is entitled to receive the Company that has received or will receive a Payment. For the purposes of this Section 5(f)Section, the “Accountants” shall mean the CompanyChoice’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)accountants. All fees and expenses of the Accountants shall be borne solely by the CompanyChoice. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section Section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section Section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For ; for purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to Payment the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive Employee shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveEmployee’s adjusted gross income), ; and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the ExecutiveEmployee’s adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by Choice at the time the Employee is entitled to receive the Payment. Any determination by the Accountants shall be binding upon the Company Choice and the ExecutiveEmployee. As a result of uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company Choice should have paid pursuant to this Section 5(f) (the “Underpayment”’). If In the Company event that Choice exhausts its remedies pursuant to Section 5(f) and the Executive Employee is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company Choice to the Executive or for his the Employee’s benefit; and.

Excise Tax. (ia) Anything The Executive is, or, if applicable, the Executive’s dependents, heirs or beneficiaries are, responsible for covering any excise taxes incurred by the Executive pursuant to Section 4999 (and any successor provision) of the Code with respect to any payments received by the Executive upon termination in connection with a Change in Control, and the Company has no responsibility for such excise taxes, or any gross up related thereto. (b) Notwithstanding any other provisions of this Agreement to the contrary notwithstandingcontrary, if it shall be determined in the event that any payment payments or distribution benefits received or to be received by the Executive or for in connection with the Executive’s benefit employment with the Company (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “Payment”termination thereof) would be subject the Executive to the excise tax imposed by section under Section 4999 of the Code or any successor provision (the “Excise Tax”), then and if the net-after tax amount (taking into account all applicable taxes payable by the Executive, including any Excise Tax) that the Executive shall be entitled to would receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on payments or benefits does not exceed the payment net-after tax amount the Executive would receive if the amount of such payments and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect benefits were reduced to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account maximum amount which could otherwise be payable to the Executive without the imposition of the Gross-Up PaymentExcise Tax, shall be equal then, to the Payment; extent necessary to eliminate the imposition of the Excise Tax, (i) such cash payments and benefits shall first be reduced (if necessary, to zero) and (ii) Notwithstanding any provision of this Agreement all other non-cash payments and benefits shall next be reduced. Cash amounts payable latest in time shall be reduced first to the contrary, but giving effect extent that such reduction results in a greater level of aggregate value to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment become payable to the Executive, and the aggregate “present value” no payment shall be altered in violation of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced Code Section 409A. (or repaid to the Company, if previously paid or providedc) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination by the Company of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement or otherwise is required pursuant to this Section 5(f)(ii) the preceding sentence will be made confirmed at the expense of the Company, if requested Company by the Executive independent accountants or compensation or benefits consultants selected by the Company, by and the Accountants (as defined in Section 5(f)(iii))Executive shall have the right to review such determination. Appropriate adjustments will be made to amounts previously paid to The fact that the Executive, ’s right to payments or to amounts benefits may be reduced by reason of the limitations contained in this Section 6 will not paid of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionAgreement. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; and

Excise Tax. (ia) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to or any other amounts in the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit “nature of compensation” (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “PaymentCompany Payments”) would ), and if such Company Payments will be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then the Company shall pay to the Executive shall be entitled to receive from at the Company time specified in Section 5(e) hereof an additional payment amount (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive Executive, after the calculation and deduction of all any Excise Taxes (including any interest or penalties imposed with respect to such taxes) Tax on the payment Company Payments and all any U.S. federal, state state, and local income tax, employment or payroll tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on upon the Gross-Up Payment provided for in by this Section 5(g5(a), but before deduction for any U.S. federal, state, and taking into account any lost local income or reduced payroll tax deductions on account of the Gross-Up PaymentCompany Payments, shall be equal to the Payment;Company Payments. (iib) Notwithstanding any provision the foregoing provisions of this Agreement Section 5(a) to the contrary, but giving effect if it shall be determined that the Executive is entitled to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to Payment, but the Executive, and the aggregate “present value” Company Payments do not exceed 110% of the greatest amount (the “parachute payments” to Reduced Amount”) that could be paid or provided to the Executive under this Agreement or otherwise does such that the receipt of the Company Payments would not exceed 1.10 multiplied by three times give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive’s “base amount,” then Executive and the payments and benefits to be paid or provided under this Agreement will Company Payments, in the aggregate, shall be reduced to an amount that is one dollar (or repaid to $1) less than the CompanyReduced Amount; provided, however, that the reduction shall occur only if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested Company Payments received by the Executive or (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the Company, unreduced Company Payments to be received by the Accountants Executive minus (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to i) the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the amount previously determined Reduced Amount is to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii)effective, the payments Company Payments shall be reduced in the following order order: (A) any cash severance based on a multiple of priority: payments pursuant annual base salary or bonus, (B) any other cash amounts payable to Section 5(b)(iv)the Executive, payments pursuant to Section 5(b)(v(C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and payments pursuant to Section 5(b)(ii)(E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to appropriate adjustment shall be made under this Section 5, including whether and when with regard to the Gross-Up Payment is required or Reduced Amount, as applicable, to reflect the final determination and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of resulting impact on whether this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder 5(b) applies. (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. c) For the purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, such (x) the Company Payments will shall be treated as “parachute payments” within the meaning of section 280G Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that that, in the opinion of the Accountants Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” or including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered (within the meaning of section Section 280G(b)(4) of the Code) Code in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified hereinExecutive’s marginal blended actual rates of federal, reasonable assumptions state and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal local income taxation for in the calendar year in which the change in ownership or effective control that subjects the Executive to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from Executive shall repay to the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon Company, at the time that the amount of such reduction in Excise Tax is finally determined, the Executive’s adjusted gross income), portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and to have otherwise allowable deductions for FederalU.S. federal, state and local income tax purposes at least equal to those disallowed because of imposed on the inclusion portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s adjusted gross incomeclaim for refund or credit is denied. Any determination In the event that the Excise Tax is later determined by the Accountants shall or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code determined at the time of the initial determination by Gross-Up Payment), the Accountants hereunder, it is possible that the Company shall make an additional Gross-Up Payment made will have been an in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount less of such excess is finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the Company should have paid pursuant sixtieth (60th) day following an event occurring which subjects the Executive to this Section 5(f) (the “Underpayment”). If Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company exhausts its remedies shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(f5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the Executive is required event that the amount of the estimated payments exceeds the amount subsequently determined to make have been due, such excess shall constitute a payment of any Excise Tax, the Underpayment shall be promptly paid loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for his benefit; andall charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the Xxxxxxxx-Xxxxx Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of Section 21(b).

Excise Tax. (i) Anything in this Agreement to a. In the contrary notwithstanding, if it shall be determined event that any payment payments or distribution benefits provided or to the be provided by Company or Bank or their respective Affiliates to Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “PaymentCovered Payments”) would constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto) and would, but for this Section 24(b), be subject to the excise tax imposed by section Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then prior to making the Executive shall Covered Payments the Parties will, to the extent practicable and reasonable, take such action and execute such documents as may be entitled necessary to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such ensure that the net amount none of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as constitute “parachute payments” within the meaning of section Section 280G of the CodeCode (or any successor provision thereto), and all in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that none of the Covered Payments will constitute “parachute payments” in excess within the meaning of Section 280G of the “base amount” Code (or any successor provision thereto), then a calculation shall be made comparing (A) the Net Benefit (as defined under section 280G(b)(3below) to Executive of the CodeCovered Payments after payment of the Excise Tax to (B) shall be treated as the Net Benefit to Executive if the Covered Payments are reduced to the minimum extent necessary to avoid being subject to the Excise Tax, unless and except . Only if the amount calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments be reduced to the minimum extent necessary to ensure that in the opinion no portion of the Accountants such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not is subject to such the Excise Tax. For purposes of calculating whether The term “Net Benefit” shall mean the Excise Tax is applicable and determining the amount present value of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, Covered Payments net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross all federal, state, local, foreign income), employment, and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomeexcise taxes. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment reduction made will have been an amount less than the Company should have paid pursuant to this Section 5(f24(b) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid made in a manner determined by Employer that is consistent with the Company to requirements of Section 409A of the Executive or for his benefit; andCode.

Excise Tax. (i) Anything in this Agreement to In the contrary notwithstanding, if it shall be determined event that any payment payments or distribution benefits provided or to the be provided by Company or Bank or their respective Affiliates to Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “PaymentCovered Payments”) would constitute “parachute payments” within the meaning of Section 280G of the Code (or any successor provision thereto) and would, but for this Section 24(b), be subject to the excise tax imposed by section Section 4999 of the Code (or any successor provision thereto) or any similar tax imposed by state or local law or any interest or penalties with respect to such taxes (collectively, the “Excise Tax”), then prior to making the Executive shall Covered Payments the Parties will, to the extent practicable and reasonable, take such action and execute such documents as may be entitled necessary to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such ensure that the net amount none of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Covered Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as constitute “parachute payments” within the meaning of section Section 280G of the CodeCode (or any successor provision thereto), and all in the event (but only in the event) it is not practicable and reasonable to take such action and execute such documents or it is not reasonably possible to ensure that none of the Covered Payments will constitute “parachute payments” in excess within the meaning of Section 280G of the “base amount” Code (or any successor provision thereto), then a calculation shall be made comparing (A) the Net Benefit (as defined under section 280G(b)(3below) to Executive of the CodeCovered Payments after payment of the Excise Tax to (B) shall be treated as the Net Benefit to Executive if the Covered Payments are reduced to the extent necessary to avoid being subject to the Excise Tax, unless and except . Only if the amount calculated under clause (A) above is less than the amount calculated under clause (B) above will the Covered Payments be reduced to the minimum extent necessary to ensure that in the opinion no portion of the Accountants such Covered Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not is subject to such the Excise Tax. For purposes of calculating whether The term “Net Benefit” shall mean the Excise Tax is applicable and determining the amount present value of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, Covered Payments net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross all federal, state, local, foreign income), employment, and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomeexcise taxes. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment reduction made will have been an amount less than the Company should have paid pursuant to this Section 5(f24(b) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid made in a manner determined by Employer that is consistent with the Company to requirements of Section 409A of the Executive or for his benefit; andCode.

Excise Tax. (i) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit, or distribution by the Firm to the Executive or for the Executive’s benefit of the Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this paragraph) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any successor provision interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be duePayments. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5paragraph, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by Deloitte & Touche LLP or such other certified public accounting firm reasonably acceptable to the Firm as may be designated by the Accountants Executive (as defined below), the “Accounting Firm”) which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Lazard and the Executive within fifteen (15) 15 business days of the receipt of notice from the Executive or the Company that there has received or will receive been a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is requested by Lazard. All fees and expenses of the Accountants Accounting Firm shall be borne solely by the CompanyLazard. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Any Gross-Up Payment is shall be paid by Lazard to be made, net the Executive within five days of the maximum reduction in Federal income taxes which could be obtained from later of (i) the deduction due date for the payment of such state or local taxes if paid in such year any Excise Tax, and (determined without regard to limitations on deductions based upon ii) the amount receipt of the ExecutiveAccounting Firm’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination by the Accountants Accounting Firm shall be binding upon the Company Lazard and the Executive. As a result of the uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than the Company made by Lazard should have paid pursuant to this Section 5(f) been made (the “Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”). If In the Company exhausts its remedies pursuant to Section 5(f) event that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Lazard to or for the Company benefit of the Executive. In the event that there occurs an Overpayment and the Executive becomes entitled to receive any refund with respect to the Excise Tax, the Executive shall promptly pay to Lazard the amount of such refund (together with any interest paid or for his benefit; andcredited thereon after taxes applicable thereto).

Excise Tax. (i) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit, or distribution by the Firm to the Executive or for the Executive’s benefit of the Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement (including, without limitation, this Schedule I) or otherwise otherwise, but determined without regard to any additional payments required under this paragraph) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code (or any successor similar provision of state, local or foreign law) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal but excluding any income taxes and penalties imposed pursuant to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Section 409A of the Code, the Executive retains an amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and Excise Tax imposed upon the aggregate “present value” of the “parachute payments” Payments. The Firm’s obligation to be paid or provided to the Executive make Gross-Up Payments under this Agreement or otherwise does paragraph 5 shall not exceed 1.10 multiplied by three times be conditioned upon the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion termination of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Codeemployment. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5paragraph, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by Deloitte & Touche LLP or such other certified public accounting firm reasonably acceptable to the Firm as may be designated by the Accountants Executive (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Lazard and the Executive within fifteen (15) business days of after the receipt of notice from the Executive or the Company that there has received or will receive been a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is requested by Lazard. All fees and expenses of the Accountants Accounting Firm shall be borne solely by the CompanyFirm. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Any Gross-Up Payment is shall be paid by the Firm to be madethe Executive within five days after the later of (i) the due date for the payment of any Excise Tax, net and (ii) the receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAccounting Firm’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination by the Accountants shall Accounting Firm shall, absent manifest error, be binding upon the Company Firm and the Executive. As a result of the uncertainty in the application of section Sections 4999 and 280G of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made will Payments should have been an amount less than made by the Company should have paid pursuant to this Section 5(f) Firm but were not made (the “Underpayment”) or that Gross-Up Payments which were made by the Firm should not have been made (“Overpayment”). If In the Company exhausts its remedies pursuant to Section 5(f) event that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company Firm to or for the benefit of the Executive. In the event that there occurs an Overpayment and the Executive becomes entitled to receive any refund with respect to the Excise Tax, the Executive shall promptly pay to the Firm the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). Any Gross-Up Payment (including any Underpayment), as determined pursuant to this paragraph 5, shall be paid by the Firm to the Executive as provided above; provided that, the Gross-Up Payment shall in all events be paid no later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Excise Tax (and any income or other related taxes or interest or penalties thereon) on a Payment is remitted to the Internal Revenue Service or any other applicable taxing authority or, in the case of amounts relating to a claim from the Internal Revenue Service or another tax authority that does not result in the remittance of any federal, state, local and foreign income, excise, social security and other taxes, the calendar year in which the claim is finally settled or otherwise resolved. Notwithstanding any other provision of this paragraph 5, the Firm may, in its sole discretion, to comply with any tax withholding requirements, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for his benefit; andthe benefit of the Executive, all or any portion of any Gross-Up Payment, and the Executive hereby consents to such withholding.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any payment payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 17) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount after payment by Executive of the Payment and all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on Executive retains from the Gross-Up Payment provided for an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non- employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 5(g)17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 17, and taking into account any lost or reduced tax deductions on account of the if it shall be determined that Executive is entitled to a Gross-Up Payment, shall be equal to but that the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination portion of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company Payments that would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the treated as “parachute payments” under Section 2800 of the Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to be paid or provided to Executive and the Executive amounts payable under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will shall be reduced (or repaid so that the Payments, in the aggregate, are reduced to the Company, if previously paid or provided) to Safe Harbor Amount. The “Safe Harbor Amount” is the minimum extent necessary so greatest amount of payments in the nature of compensation that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For are contingent on a Change in Control for purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the CodeCode that could be paid to Executive without giving rise to any Excise Tax. The determination reduction of whether any reduction in or repayment the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of such reducing the payments or benefits to be provided the Safe Harbor Amount, only amounts payable under this Agreement is required pursuant to this Section 5(f)(ii(and no other Payments) will shall be made at reduced. If the expense reduction of the Company, if requested by amounts payable under this Agreement would not result in a reduction of the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid Payments to the ExecutiveSafe Harbor Amount, or to no amounts not paid pursuant to payable under this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to shall be reduced pursuant to this Section 5(f)(ii17(a), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All Subject to the provisions of Section 17(c), all determinations required to be made under this Section 517, including the determination of whether and when the a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants Company’s independent auditors or such other accounting firm agreed by the parties hereto (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment the Company within fifteen (15) 15 business days of after the receipt of notice from the Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely is requested by the Company. For the purposes of determining whether , provided that any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent determination that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the an Excise Tax is applicable and determining payable by Executive shall be made on the amount basis of the substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 17(b), shall be paid to Executive (A) or for the benefit of the Executive to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax, and (Cii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive shall be deemed not to pay report any Excise Tax on his Federal income taxes at tax return and, as a result, the highest applicable marginal rate Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of Federal income taxation for the calendar year in which the Gross-Up Payment is any such opinion to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants Accounting Firm meeting the requirements of this Section 17(b) shall be binding upon the Company and the Executive. As a result of uncertainty the uncertainly in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than made by the Company should have paid pursuant to this Section 5(f) been made (the “Underpayment”), consistent with the calculations required to be made hereunder. If In the event that the Company exhausts its remedies pursuant to Section 5(f17(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for his benefitthe benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not Later than ten business days after Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and xxx for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (i) Anything in this Agreement to In the contrary notwithstanding, if event that it shall be is determined that any payment or distribution benefit provided by the Company to the Executive or for the Executive’s benefit of Employee (whether paid or payable or distributed or distributable) pursuant to the terms of "Payments"), either under this Agreement or otherwise (the “Payment”) would otherwise, will be subject to the excise tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code or any successor provision (the “Excise Tax”"section 4999"), then the Executive shall be entitled to receive from the Company will, prior to the date on which any amount of the Excise Tax must be paid or withheld, make an additional lump-sum payment (the “"Gross-Up up Payment”") in an amount such that the net amount of the Payment and the to Employee. The Gross-Up up Payment retained by the Executive will be sufficient, after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect giving effect to such taxes) on the payment and all federal, state and local income tax, employment tax other taxes and Excise Tax charges (including any interest or penalties imposed and penalties, if any) with respect to such taxes) on the Gross-Up up Payment, to make Employee whole for all taxes (including withholding taxes) and any associated interest and penalties, imposed under or as a result of section 4999. The Gross-up Payment provided for in this Section 5(g), above will be paid on the thirtieth (30th) day (or such earlier date as the Excise Tax becomes due and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal payable to the Payment;taxing authorities) after it has been determined that the Payments are subject to the Excise Tax, but in no event later than sixty (60) days following termination of employment of Employee. (ii) Notwithstanding any provision of this Agreement In the event Employee would be entitled to the contraryPayments which would be subject to the Excise Tax, but giving effect Employee may, at his option, elect to any redetermination reduce the Payments he would receive to such an amount as would not be subject to the Excise Tax. To exercise this option, Employee must provide written notice (the "Cap Notice") to the Company of such election within ten (10) business days of the Termination Date and such Cap Notice must specify the manner and amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence in which Employee elects to reduce the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” Payments. Upon receipt of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied Cap Notice by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) Employee's election will be made at considered irrevocable and the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments Company shall be reduced have no liability whatsoever for complying with Employee's instructions contained in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionCap Notice. (iii) All determinations required to be made Determinations under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall 3.1 will be made in good faith by the Accountants (as defined below), which shall provide Accounting Firm. The determinations of the Executive and Accounting Firm will be binding upon the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving and Employee except as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder are established in resolution (which accounting firm shall also be referred including by settlement) of a controversy with the Internal Revenue Service to herein as the “Accountants”)have been incorrect. All fees and expenses of the Accountants shall Firm will be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; and.

Excise Tax. If any benefits paid or distributed to, or realized by, Employee pursuant to this Agreement, together with any other amounts or value otherwise paid or distributed to Employee by Glowpoint (ie.g., the lapsing of restrictions on Restricted Stock) Anything in this Agreement connection with a Change in Control or Corporate Transaction (collectively, the "280G Payments"), would be an "excess parachute payment" as defined in Section 280G of the Code and would thereby subject Employee to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “Payment”) would be subject to the excise tax imposed by section under Section 4999 of the Code or any successor provision similar tax (the “"Excise Tax”"), then Glowpoint shall make Employee whole for any additional taxes or penalties applicable to such 280G Payments due to the Executive shall be entitled Excise Tax by making a gross-up payment to receive from the Company an additional payment Employee (the “"Gross-Up Payment”) in an amount "), such that the net total amount of 280G Payments, net of all applicable state, federal and local income taxes (including, without limitation, the Payment Excise Tax), actually received by Employee is equal to those 280G Payments calculated as if only normally applicable state, federal and local income taxes, and not the Excise Tax, had applied; provided, the Gross-Up Payment retained by the Executive after the calculation shall include and deduction of all Excise Taxes (including cover any interest or penalties imposed with respect to such taxes) on the payment and all federalstate, state federal and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect taxes that are applicable to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, . Glowpoint’s outside auditing firm shall determine the Excise Tax and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting make any other calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of under this Section 5(f)3.6 within thirty (30) days following the applicable Change in Control, the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with Corporate Transaction or other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results event resulting in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make and the determinations required hereunder (which accounting of Glowpoint's outside auditing firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments under this Section 3.6 will be subject to the Excise Tax deemed conclusive and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, binding on Glowpoint and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise TaxEmployee. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Any Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment 3.6 shall be promptly paid by to Employee within thirty (30) days following the Company to completion of the Executive or for his benefit; anddeterminations of Glowpoint’s outside auditing firm under this Section 3.6.

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Code, subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income and all federal, state and local income tax, employment tax taxes and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 510(d), including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 10(d), shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAuditor’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “UnderpaymentRecalculated Amount”). If the Company exhausts its remedies pursuant to Section 5(f) and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefitthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment; andprovided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(d) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).

Excise Tax. (i1) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment (other than the payment provided for in this Paragraph 13.(c)) or distribution of any type to the Executive or for the benefit of Executive’s benefit , by Company, any affiliate of Company, any person who acquires ownership or effective control of Company or ownership of a substantial portion of Company's assets (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations thereunder) or any affiliate of such person, whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise (the “Payment”) would "Total Payments"), is or will be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive from the Company an additional payment (the “a "Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal), state and local including any income tax, employment tax and or Excise Tax (including any interest or penalties Tax, imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the ExecutiveExcise Tax imposed upon the Total Payments. (2) All determinations that are required to be made under this Paragraph 13.(c), and the aggregate “present value” including, but not limited to, determinations as to whether any of the “Total Payments are "parachute payments” to be paid or provided to " (within the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion meaning of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly whether a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and required, the amount of such Gross-Up Payment, Payment and amounts relevant to the assumptions to be utilized in arriving at such determinationslast sentence of this Paragraph 13.(c)(2), shall be made by an independent accounting firm selected by Executive from among the four (4) largest accounting firms in good faith the United States (the "Accounting Firm") (including, but not limited to, and without objection by Company and notwithstanding any potential or actual conflict of interest between Company and Executive, any such accounting firm which is then providing or has at any time in the Accountants (as defined belowpast provided services to Company and/or any subsidiaries or affiliates of Company), which shall provide its determination (the Executive and the Company "Determination"), together with detailed supporting calculations with respect to such calculations, regarding the amount of any Gross-Up Payment within fifteen and any other relevant matter, both to Company and Executive by no later than ten (1510) business days after the date Executive's employment is terminated, if applicable, or such other time as requested by Company or by Executive if Executive reasonably believes that there is a possibility that an Excise Tax may be payable in respect of all or any portion of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise TaxTotal Payments. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control Accounting Firm determines that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the no Excise Tax is applicable payable by Executive, it shall furnish Executive and determining Company with an opinion reasonably acceptable to Executive and Company that no Excise Tax is payable (including the amount of the Gross-Up Payment, (Areasons therefor) and that Executive has substantial authority not to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal report any Excise Tax on Executive's federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the tax return. If a Gross-Up Payment is determined to be madepayable, net of it shall be paid to Executive within twenty (20) days after the maximum reduction in Federal income taxes which could be obtained from Determination (and all accompanying calculations and other material supporting the deduction of such state or local taxes if paid in such year (determined without regard Determination) is delivered to limitations on deductions based upon Company by the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomeAccounting Firm. Any determination by the Accountants Accounting Firm shall be binding upon the Company and the Executive, absent manifest error. As a result of uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment Payments not made by Company should have been made ("Underpayment"), or that Gross-Up Payments will have been an amount less than the made by Company which should not have paid pursuant to this Section 5(f) been made (the “Underpayment”"Overpayments"). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise TaxIn either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment (together with any interest and penalties payable by Executive as a result of such Underpayment) shall be promptly paid by the Company to the Executive or for his benefit; andthe benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, Company, and otherwise reasonably cooperate with Company to correct such Overpayment. The fees and expenses of the Accounting Firm shall be paid by Company.

Excise Tax. (i) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit, or distribution by the Firm to the Executive or for the Executive’s benefit of the Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this paragraph) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any successor provision interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be duePayments. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5paragraph, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by Deloitte & Touche LLP or such other certified public accounting firm reasonably acceptable to the Firm as may be designated by the Accountants Executive (as defined below), the “Accounting Firm”) which shall provide detailed sup porting calculations both to Lazard and the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) 15 business days of the receipt of notice from the Executive or the Company that there has received or will receive been a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is requested by Lazard. All fees and expenses of the Accountants Accounting Firm shall be borne solely by the CompanyLazard. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Any Gross-Up Payment is shall be paid by Lazard to be made, net the Executive within five days of the maximum reduction in Federal income taxes which could be obtained from later of (i) the deduction due date for the payment of such state or local taxes if paid in such year any Excise Tax, and (determined without regard to limitations on deductions based upon ii) the amount receipt of the ExecutiveAccounting Firm’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination by the Accountants Accounting Firm shall be binding upon the Company Lazard and the Executive. As a result of the uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than the Company made by Lazard should have paid pursuant to this Section 5(f) been made (the “Underpayment”) or that Gross-Up Payments which were made by Lazard should not have been made (“Overpayment”). If In the Company exhausts its remedies pursuant to Section 5(f) event that there occurs an Underpayment and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by Lazard to or for the Company benefit of the Executive. In the event that there occurs an Overpayment and the Executive becomes entitled to receive any refund with respect to the Excise Tax, the Executive shall promptly pay to Lazard the amount of such refund (together with any interest paid or for his benefit; andcredited thereon after taxes applicable thereto).

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 6 (collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Code, subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than $50,000 greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) on and Excise Tax imposed upon the payment Gross-Up Payment (and all federalany interest and penalties imposed with respect thereto), state and local income tax, employment tax and the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on imposed upon the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 56, including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 6. The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 6, shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAuditor’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “UnderpaymentRecalculated Amount”). If the Company exhausts its remedies pursuant to Section 5(f) and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefit; andthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (ia) Anything in this Agreement to To the contrary notwithstanding, if it shall be determined extent that any payment or distribution to the Executive or for the Executive’s benefit (of Executive pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any of its affiliated companies, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Code or any person affiliated with the Company or such person, whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement or otherwise (the “PaymentPayments”) would be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”)) imposed by Section 4999 of the Code, then the Company shall reduce the payments to the amount that is (after taking into account federal, state, local and social security taxes at the maximum marginal rates, including any excise taxes imposed by Section 4999 of the Code) one dollar less than the amount of the Payments that would subject Executive shall be entitled to receive from the Company an additional payment Excise Tax (the “Gross-Up PaymentSafe Harbor Cap”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g)if, and taking into account any lost or reduced only if, such reduction would result in Executive receiving a higher net after-tax deductions on account of the Gross-Up Payment, amount. Unless Executive shall be equal have given prior written notice specifying a different order to the Payment; (ii) Notwithstanding any provision of this Agreement Company to effectuate the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii)Safe Harbor Cap, the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required Payments to be reduced pursuant hereunder will be determined in a manner which has the least economic cost to this Section 5(f)(ii)Executive and, to the payments shall extent the economic cost is equivalent, will be reduced in the following inverse order of priority: payments pursuant when the Payment would have been made to Section 5(b)(iv), payments pursuant Executive until the reduction specified herein is achieved. Executive’s right to Section 5(b)(v) and payments pursuant specify the order of reduction of the Payments shall apply only to Section 5(b)(ii), with the extent that it does not directly or indirectly alter the time or method of payment of any Equity Compensation having an option feature being the last payments to be amount that is deferred compensation subject to reduction.(and not exempt from) Section 409A. (iiib) All determinations required to be made under this Section 54, including whether and when the Gross-Up Payment Safe Harbor Cap is required and the amount of such Gross-Up Payment, the reduction of the Payments pursuant to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a public accounting firm that is retained by the Accountants Company as of the date immediately prior to the Change in Control (as defined below), the “Accounting Firm”) which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company that has received or will receive a Payment. For the purposes of this Section 5(f)(collectively, the “Accountants” shall mean Determination”). In the Company’s independent certified public accountants serving immediately prior to event that the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting a change the Change in control that with other events results in the imposition of the Excise TaxControl, the Company shall Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also then be referred to herein as the “Accountants”Accounting Firm hereunder). All fees and expenses of the Accountants Accounting Firm shall be borne solely by the Company. For Company and the purposes of determining whether Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Taxhereunder. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination The Determination by the Accountants Accounting Firm shall be binding upon the Company and the Executive. As a result Executive shall cooperate, to the extent his reasonable out-of uncertainty in the application of section 4999 of the Code at the time of the initial determination pocket expenses are reimbursed by the Accountants hereunderCompany, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of with any Excise Tax, the Underpayment shall be promptly paid reasonable requests by the Company to in connection with any contests or disputes with the Executive or for his benefit; andInternal Revenue Service in connection with the Excise Tax.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any payment payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by Company or its subsidiaries to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 14) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount after payment by Executive of the Payment and all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on Executive retains from the Gross-Up Payment provided for an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 5(g)14(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 14, and taking into account any lost or reduced tax deductions on account of the if it shall be determined that Executive is entitled to a Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any portion of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will that would be treated as “parachute payments” within under Section 2800 of the meaning Code does not exceed the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of section payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code, and all “parachute payments” in excess Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the “base amount” (as defined under section 280G(b)(3) of the Code) amounts payable hereunder, if applicable, shall be treated as subject to made by reducing the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Taxcash payments under Section 3. For purposes of calculating whether reducing the Excise Tax is applicable payments to the Safe Harbor Amount, only amounts payable under this Agreement (and determining no other Payments) shall be reduced. If the amount reduction of the Gross-Up Payment, (A) amounts payable under this Agreement would not result in a reduction of the Payments to the extent not otherwise specified hereinSafe Harbor Amount, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive no amounts payable under this Agreement shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid reduced pursuant to this Section 5(f) (the “Underpayment”14(a). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; and.

Excise Tax. (ia) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to or any other amounts in the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit “nature of compensation” (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “PaymentCompany Payments”) would ), and if such Company Payments will be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then the Company shall pay to the Executive shall be entitled to receive from at the Company an additional payment time specified in Section 5(e) hereof anadditional amount (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive Executive, after the calculation and deduction of all any Excise Taxes (including any interest or penalties imposed with respect to such taxes) Tax on the payment Company Payments and all any U.S. federal, state state, and local income tax, employment or payroll tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on upon the Gross-Up Payment provided for in by this Section 5(g5(a), but before deduction for any U.S. federal, state, and taking into account any lost local income or reduced payroll tax deductions on account of the Gross-Up PaymentCompany Payments, shall be equal to the Payment;Company Payments. (iib) Notwithstanding any provision the foregoing provisions of this Agreement Section 5(a) to the contrary, but giving effect if it shall be determined that the Executive is entitled to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to Payment, but the Executive, and the aggregate “present value” Company Payments do not exceed 110% of the greatest amount (the “parachute payments” to Reduced Amount”) that could be paid or provided to the Executive under this Agreement or otherwise does such that the receipt of the Company Payments would not exceed 1.10 multiplied by three times give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive’s “base amount,” then Executive and the payments and benefits to be paid or provided under this Agreement will Company Payments, in the aggregate, shall be reduced to an amount that is one dollar (or repaid to $1) less than the CompanyReduced Amount; provided, however, that the reduction shall occur only if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested Company Payments received by the Executive or (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the Company, unreduced Company Payments to be received by the Accountants Executive minus (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to i) the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the amount previously determined Reduced Amount is to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii)effective, the payments Company Payments shall be reduced in the following order order: (A) any cash severance based on a multiple of priority: payments pursuant annual base salary or bonus, (B) any other cash amounts payable to Section 5(b)(iv)the Executive, payments pursuant to Section 5(b)(v(C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and payments pursuant to Section 5(b)(ii)(E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to appropriate adjustment shall be made under this Section 5, including whether and when with regard to the Gross-Up Payment is required or Reduced Amount, as applicable, to reflect the final determination and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of resulting impact on whether this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder 5(b) applies. (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. c) For the purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, such (x) the Company Payments will shall be treated as “parachute payments” within the meaning of section 280G Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that that, in the opinion of the Accountants Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” or including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered (within the meaning of section Section 280G(b)(4) of the Code) Code in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified hereinExecutive’s marginal blended actual rates of federal, reasonable assumptions state and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal local income taxation for in the calendar year in which the change in ownership or effective control that subjects the Executive to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from Executive shall repay to the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon Company, at the time that the amount of such reduction in Excise Tax is finally determined, the Executive’s adjusted gross income), portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and to have otherwise allowable deductions for FederalU.S. federal, state and local income tax purposes at least equal to those disallowed because of imposed on the inclusion portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s adjusted gross incomeclaim for refund or credit is denied. Any determination In the event that the Excise Tax is later determined by the Accountants shall or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code determined at the time of the initial determination by Gross-Up Payment), the Accountants hereunder, it is possible that the Company shall make an additional Gross-Up Payment made will have been an in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount less of such excess is finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the Company should have paid pursuant sixtieth (60th) day following an event occurring which subjects the Executive to this Section 5(f) (the “Underpayment”). If Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company exhausts its remedies shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(f5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the Executive is required event that the amount of the estimated payments exceeds the amount subsequently determined to make have been due, such excess shall constitute a payment of any Excise Tax, the Underpayment shall be promptly paid loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for his benefit; andall charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the Xxxxxxxx-Xxxxx Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of Section 21(b).

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “Payments”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “PaymentCode”) would be ), subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income and all federal, state and local income tax, employment tax taxes and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 510(d), including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 10(d), shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAuditor’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “UnderpaymentRecalculated Amount”). If the Company exhausts its remedies pursuant to Section 5(f) and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefit; andthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation of the Gross-Up Payment.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that If any payment or distribution by the Company to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 5.4 (the “a "Payment”")) would be is subject to the excise tax imposed by section Section 4999 of the Code or any successor provision interest or penalties thereon (together the “"Excise Tax”), ") then the Executive shall be entitled to receive from the Company an additional payment (the “a "Gross-Up Payment”") in an amount such that after payment by Executive of all taxes including, without limitation, any income taxes (together with any interest or penalties any income taxes (together with any interest or penalties thereon, the net amount of the Payment and "Additional Income tax") or any Excise Tax, imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account retains an amount of the Gross-Up Payment, shall be up Payment equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to Section 5.4(c), all determinations required to be made under this Section 55.4, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants firm of independent public accountants selected by the Company to audit its financial statements (as defined below), the "Accounting Firm") which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment the Company and executive within fifteen (15) business days of after the receipt of notice from the Executive or the Company that there has received or will receive been a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean or such earlier time as is requested by the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants Accounting Firm shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, as determined pursuant to this Section 5.4, shall be paid to Executive within five (A5) to business days after the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations receipt of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomeAccounting Firm's determination. Any determination by the Accountants Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the additional Gross-Up Payment made will payments should have been an amount less than made by the Company should have paid pursuant to this Section 5(f) (the “an "Underpayment”"). If the Company exhausts its remedies pursuant to Section 5(f5.4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for his benefitthe benefit of Executive. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notice shall be given as soon as practicable but no later than ten (10) business days after Executive knows of such claim and shall apprise the Company of the nature and date of requested payment of such claim. Executive shall not pay such claim before the earlier of (x) the date thirty (30) days after Executive's notice to the Company or (y) the date on which payment of taxes with respect to such claim is due. If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any reasonable requested information relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order 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 and shall indemnify and hold such Executive harmless, on an after-tax basis, for any Excise Tax or additional Income Tax imposed as a result of such representation any payment of costs and expenses. Without limiting this Section 5.4(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may (1) pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and (2) either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner. 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 such Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or Income Tax imposed with respect to such advance; and further provided that any extension of the statute of limitations for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of any amount advanced by the Company pursuant to Section 5.4(c), Executive becomes entitled to receive any refund with respect to such claim, executive shall (subject to the Company's complying with the requirements of Section 5.4(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 5.4(c), a determination is made that such Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of any Gross-Up Payment required to be paid.

Excise Tax. (ia) Anything in In the event that the Executive shall become entitled to payments and/or benefits provided by this Agreement to or any other amounts in the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit “nature of compensation” (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a change of ownership or effective control covered by Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (“Code”) or any person affiliated with the Company or such person) as a result of a Change in Control (collectively the “PaymentCompany Payments”) would ), and if such Company Payments will be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”) imposed by Section 4999 of the Code (and any similar tax that may hereafter be imposed by any taxing authority), then the Company shall pay to the Executive shall be entitled to receive from at the Company an additional payment time specified in Section 5(e) hereof anadditional amount (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive Executive, after the calculation and deduction of all any Excise Taxes (including any interest or penalties imposed with respect to such taxes) Tax on the payment Company Payments and all any U.S. federal, state state, and local income tax, employment or payroll tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on upon the Gross-Up Payment provided for in by this Section 5(g5(a), but before deduction for any U.S. federal, state, and taking into account any lost local income or reduced payroll tax deductions on account of the Gross-Up PaymentCompany Payments, shall be equal to the Payment;Company Payments. (iib) Notwithstanding any provision the foregoing provisions of this Agreement Section 5(a) to the contrary, but giving effect if it shall be determined that the Executive is entitled to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to Payment, but the Executive, and the aggregate “present value” Company Payments do not exceed 110% of the greatest amount (the “parachute payments” to Reduced Amount”) that could be paid or provided to the Executive under this Agreement or otherwise does such that the receipt of the Company Payments would not exceed 1.10 multiplied by three times give rise to any Excise Tax, then no Gross-Up Payment shall be made to the Executive’s “base amount,” then Executive and the payments and benefits to be paid or provided under this Agreement will Company Payments, in the aggregate, shall be reduced to an amount that is one dollar (or repaid to $1) less than the CompanyReduced Amount; provided, however, that the reduction shall occur only if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested Company Payments received by the Executive or (after taking into account further reductions for applicable federal, state and local income, social security and other taxes) would be greater than the Company, unreduced Company Payments to be received by the Accountants Executive minus (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to i) the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than payable with respect to such Company Payments and (ii) all applicable federal, state and local income, social security and other taxes on such Company Payments. If the amount previously determined Reduced Amount is to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii)effective, the payments Company Payments shall be reduced in the following order order: (A) any cash severance based on a multiple of priority: payments pursuant annual base salary or bonus, (B) any other cash amounts payable to Section 5(b)(iv)the Executive, payments pursuant to Section 5(b)(v(C) any benefits valued as “parachute payments,” (D) acceleration of vesting of any stock option or similar awards for which the exercise price exceeds the then fair market value, and payments pursuant to Section 5(b)(ii)(E) acceleration of vesting of any equity not covered by clause (D) above. In the event that the Internal Revenue Service or court ultimately makes a determination that the “excess parachute payments” plus the “base amount” is an amount other than as determined initially, with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to appropriate adjustment shall be made under this Section 5, including whether and when with regard to the Gross-Up Payment is required or Reduced Amount, as applicable, to reflect the final determination and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of resulting impact on whether this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder 5(b) applies. (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. c) For the purposes of determining whether any of the Company Payments will be subject to the Excise Tax and the amount of such Excise Tax, such (x) the Company Payments will shall be treated as “parachute payments” within the meaning of section 280G Section 280G(b)(2) of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that that, in the opinion of the Accountants Company’s independent certified public accountants appointed prior to any change in ownership (as defined under Section 280G(b)(2) of the Code) or tax counsel selected by such accountants (the “Accountants”) such Company Payments (in whole or in part) either do not constitute “parachute payments,” or including giving effect to the recalculation of stock options in accordance with Treasury Regulation Section 1.280G-1 Q/A33, represent reasonable compensation for services actually rendered (within the meaning of section Section 280G(b)(4) of the Code) Code in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such the Excise Tax, and (y) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Accountants in accordance with the principles of Section 280G of the Code. All determinations hereunder shall be made by the Accountants which shall provide detailed supporting calculations both to the Company and the Executive at such time as it is requested by the Company or the Executive. The determination of the Accountants, subject to the adjustments provided below, shall be final and binding upon the Company and the Executive. (d) For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified hereinExecutive’s marginal blended actual rates of federal, reasonable assumptions state and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal local income taxation for in the calendar year in which the change in ownership or effective control that subjects the Executive to the Excise Tax occurs shall be used. In the event that the Excise Tax is subsequently determined by the Accountants to be less than the amount taken into account hereunder at the time the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from Executive shall repay to the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon Company, at the time that the amount of such reduction in Excise Tax is finally determined, the Executive’s adjusted gross income), portion of the prior Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and to have otherwise allowable deductions for FederalU.S. federal, state and local income tax purposes at least equal to those disallowed because of imposed on the inclusion portion of the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a U.S. federal, state and local income tax deduction), plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Notwithstanding the foregoing, in the event that any portion of the Gross-Up Payment to be refunded to the Company has been paid to any U.S. federal, state and local tax authority, repayment thereof (and related amounts) shall not be required until actual refund or credit of such portion has been made to the Executive, and interest payable to the Company shall not exceed the interest received or credited to the Executive by such tax authority for the period it held such portion. The Executive and the Company shall mutually agree upon the course of action to be pursued (and the method of allocating the expense thereof) if the Executive’s adjusted gross incomeclaim for refund or credit is denied. Any determination In the event that the Excise Tax is later determined by the Accountants shall or the Internal Revenue Service (or other taxing authority) to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code determined at the time of the initial determination by Gross-Up Payment), the Accountants hereunder, it is possible that the Company shall make an additional Gross-Up Payment made will have been an in respect of such excess (plus any interest or penalties payable with respect to such excess) promptly after the amount less of such excess is finally determined. (e) The Gross-Up Payment or portion thereof provided for in Section 5(d) above shall be paid not later than the Company should have paid pursuant sixtieth (60th) day following an event occurring which subjects the Executive to this Section 5(f) (the “Underpayment”). If Excise Tax; provided, however, that if the amount of such Gross-Up Payment or portion thereof cannot be finally determined on or before such day, the Company exhausts its remedies shall pay to the Executive on such day an estimate, as determined in good faith by the Accountants, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), subject to further payments pursuant to Section 5(f5(d) above, as soon as the amount thereof can reasonably be determined, but in no event later than the ninetieth (90th) day after the occurrence of the event subjecting the Executive to the Excise Tax. Subject to Sections 5(d) and 5(i), in the Executive is required event that the amount of the estimated payments exceeds the amount subsequently determined to make have been due, such excess shall constitute a payment of any Excise Tax, the Underpayment shall be promptly paid loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). (f) In the event of any controversy with the Internal Revenue Service (or other taxing authority) with regard to the Excise Tax, the Executive shall permit the Company to control issues related to the Excise Tax (at its expense), provided that such issues do not potentially materially adversely affect the Executive, but the Executive shall control any other issues. In the event the issues are interrelated, the Executive and the Company shall in good faith cooperate so as not to jeopardize resolution of either issue, but if the parties cannot agree the Executive shall make the final determination with regard to the issues. In the event of any conference with any taxing authority as to the Excise Tax or associated income taxes, the Executive shall permit the representative of the Company to accompany the Executive, and the Executive and the Executive’s representative shall cooperate with the Company and its representative. (g) The Company shall be responsible for his benefit; andall charges of the Accountants. (h) The Company and the Executive shall promptly deliver to each other copies of any written communications, and summaries of any verbal communications, with any taxing authority regarding the Excise Tax. (i) Nothing in this Section 5 is intended to violate the Xxxxxxxx-Xxxxx Act of 2002 and to the extent that any advance or repayment obligation hereunder would do so, such obligation shall be modified so as to make the advance a nonrefundable payment to the Executive and the repayment obligation null and void. (j) The provisions of this Section 5 shall survive the Executive’s Termination of Employment for any reason and any amount payable under this Section 5 shall be subject to the provisions of Section 22(b).

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the “a "Payment”") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of Xxxxxx US or Xxxxxx Holdings, within Section 280G of the Code (or any successor provision thereto) 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”"), then the Executive shall be entitled to receive from the Company an additional payment or payments (the “a "Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 54, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by Employer, and reasonably satisfactory to Executive (the Accountants (as defined below"Accounting Firm"), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Employer and Executive within fifteen (15) business days of the receipt of notice from the Executive Termination Date, or the Company such earlier time as is requested by Employer; provided that has received or will receive a Payment. For the for purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the any Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable marginal rate to individuals in the state or locality of Federal income taxation for Executive's residence or place of employment in the calendar year in which the any such Gross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could that can be obtained from the deduction of such state or and local taxes if paid in such year (determined without regard taxes, taking into account limitations applicable to limitations on deductions based upon individuals subject to federal income tax at the amount highest marginal rates. All fees and expenses of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive is required to make payment of any excise Tax or other taxes. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in the Executive’s adjusted gross incomewriting, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. Any determination by the Accountants Accounting Firm shall be binding upon the Company Employer and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “"Underpayment”"). If In the Company event that the Employer exhausts its remedies pursuant to Section 5(f4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the Company benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. 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 Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(c), Employer 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 Executive to pay the tax claimed and xxx for his benefita refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; andprovided, further, that if Employer directs Executive to pay such claim and xxx for a refund, Employer shall pay the amount of such claim to Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount paid by Employer pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any payment payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 17) (the “a ”Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount after payment by Executive of the Payment and all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on Executive retains from the Gross-Up Payment provided for an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 5(g)17(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 17, and taking into account any lost or reduced tax deductions on account of the if it shall be determined that Executive is entitled to a Gross-Up Payment, shall be equal to but that the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination portion of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company Payments that would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the treated as “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at Code does not exceed the expense of the Company, if requested by the Executive or the Company, by the Accountants Safe Harbor Amount (as defined in Section 5(f)(iii)). Appropriate adjustments will the following sentence) by more than $100,000, then no Gross-up Payment shall be made to Executive and the amounts previously payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to Executive without giving rise to any Excise Tax. The reduction of the Executiveamounts payable hereunder, or if applicable, shall be made by reducing the cash payments under Section 3. For purposes of reducing the payments to the Safe Harbor Amount, only amounts not paid pursuant to payable under this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to Agreement (and no other Payments) shall be duereduced. If the reduction of the amounts payable under this Agreement would not result in a Payment intended reduction of the Payments to be provided the Safe Harbor Amount, no amounts payable under the this Agreement is required to shall be reduced pursuant to this Section 5(f)(ii17(a), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All Subject to the provisions of Section 17(c), all determinations required to be made under this Section 517, including the determination of whether and when the a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants Company’s independent auditors or such other accounting firm agreed by the parties hereto (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment the Company within fifteen (15) 15 business days of after the receipt of notice from the Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely is requested by the Company. For the purposes of determining whether , provided that any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent determination that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the an Excise Tax is applicable and determining payable by Executive shall be made on the amount basis of the substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 17(b), shall be paid to Executive (A) or for the benefit of the Executive to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax, and (Cii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive shall be deemed not to pay report any Excise Tax on his Federal income taxes at tax return and, as a result, the highest applicable marginal rate Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of Federal income taxation for the calendar year in which the Gross-Up Payment is any such opinion to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants Accounting Firm meeting the requirements of this Section 17(b) shall be binding upon the Company and the Executive. As a result of uncertainty the uncertainly in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than made by the Company should have paid pursuant to this Section 5(f) been made (the “Underpayment”), consistent with the calculations required to be made hereunder. If In the event that the Company exhausts its remedies pursuant to Section 5(f17(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for his benefitthe benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 17(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct Executive to pay the claim and xxx for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements to Section 17(c)) promptly pay the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 17(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ia) Anything In the event that the severance and other benefits provided in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise payable to Executive constitute “parachute payments” under Section 280G of the Internal Revenue Code of 1986, as amended (the “PaymentCode”) and would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision (the “Excise Tax”)Code, then the Executive then, except as provided by Section 10(b) below: Executive’s benefits shall be entitled to receive from the Company an additional payment either (the “Gross-Up Payment”i) delivered in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest full, or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement delivered as to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company such lesser extent which would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that result in no portion of any payment or benefit such benefits being subject to the Executiveexcise tax, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G whichever of the Code. The determination of whether any reduction foregoing amounts results in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense receipt by Executive on an after-tax basis, of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the greatest amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionbenefits. (iiib) All determinations required to be made under this Section 5In addition, including whether and when in the Gross-Up Payment is required and the amount of such Gross-Up Paymentevent a Change in Control occurs, and Executive’s employment is terminated by the assumptions Company without Cause, or Executive resigns for Good Reason, prior to be utilized in arriving at such determinationsthe first anniversary of the Effective Date, shall be made in good faith and it is determined by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company Internal Revenue Service that has received the payments or will receive a Payment. For the purposes of benefits provided for in this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant Agreement or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as otherwise constitute “parachute payments” within the meaning of section Section 280G of the Code, Code and all “parachute payments” in excess of will be subject to the “base amount” (as defined under section 280G(b)(3) excise tax imposed by Section 4999 of the Code, then Executive will receive, as soon as the calculations required under Section 10(c) are complete and upon any notification from the Internal Revenue Service of its determination that payments or benefits hereunder constitute excess parachute payments, (i) payments from the Company sufficient to pay such excise tax (plus any interest and penalties), and (ii) an additional payment from the Company sufficient to pay the federal and state income and employment taxes and additional excise taxes (plus any interest and penalties) arising from the payments made to Executive by the Company pursuant to this sentence (collectively the “Gross-up Payment”). Notwithstanding the foregoing however, the Company shall only be treated as subject obligated to make such a Gross-up Payment in an amount necessary, if any, such that the Excise Taxexcess of (1) (A) any severance and/or First Year Severance Payment paid or payable to Executive pursuant to Section 8(a) and (b), unless (B) any (i) Base Salary paid up until the date of termination, (ii) the Signing Bonus, and except to (iii) the extent that in value of Restricted Stock vested prior to, and including, the opinion date of the Accountants such Payments Change in Control (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within measured by the meaning of section 280G(b)(4) closing price of the Code) in excess Company’s common stock as of the “base amount,” applicable vesting date), and (C) the value of vested Performance Units (measured by the closing price of the Company’s common stock as of the applicable vesting date) settled prior to, and including, the date of the Change in Control, and (D) the Gross-up Payment, over (2) all applicable income, employment and excise taxes (including any interest and penalties), whether payable in connection with such Change in Control, the Gross-up Payment or such “parachute payments” are otherwise, equals $1,800,000. (c) Unless Executive and the Company agree otherwise not subject to such Excise Tax. For purposes in writing, the determination of calculating whether the Excise Tax is applicable Executive’s excise tax liability and determining the amount of the Gross-Up Paymentup Payment for purposes of subsection 9(b) above, (A) if any, will be made in writing by the independent auditors who are primarily used by the Company immediately prior to the extent not otherwise specified hereinChange in Control (the “Accountants”). For purposes of making the calculations required by this Section 10, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may be maderely on reasonable, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in concerning the application of section Sections 280G and 4999 of the Code at Code. Executive and the time of the initial determination by Company agree to furnish such information and documents as the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required may reasonably request in order to make a payment of determination under this Section 10. The Company will bear all costs the Accountants and/or Executive may reasonably incur in connection with any Excise Tax, the Underpayment shall be promptly paid calculations contemplated by the Company to the Executive or for his benefit; andthis Section 10.

Excise Tax. (ia) Anything in Any other provision of this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution in the nature of compensation to the Executive or for the Executive’s benefit (whether be paid or payable or distributed or distributable) pursuant provided to the terms of you under this Agreement or otherwise is considered to be a “parachute payment” within the meaning of Section 280G(b) of the Code, the Company shall pay to you an additional amount (hereinafter referred to as the “PaymentExcise Tax Premium”) would ). The Excise Tax Premium shall be subject equal to the excise tax imposed determined under Code Section 4999 attributable to the total amount of payments received by section 4999 of you. The Excise Tax Premium shall also include any amount attributable to excise tax on the Code or any successor provision Excise Tax Premium. The Company shall also pay to you an additional amount (the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the “Gross-Up PaymentAdditional Amount”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained received by the Executive you, after the calculation and deduction of all Excise Taxes (including paying any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and applicable Excise Tax (including Premium and any interest federal or penalties imposed with respect to state income, excise or other tax on such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Paymentadditional amount, shall be equal to the Payment;amount that you would have received if such Excise Tax Premium were not applicable. You shall be deemed to pay income taxes at all relevant times at the highest marginal rate of income taxation in effect in your taxing jurisdiction. The Additional Amount shall include any amount attributable to income, excise or other tax on the Additional Amount. (iib) Notwithstanding Not later than 30 days following any provision payment in the nature of this Agreement to compensation described herein, the contrary, but giving effect to any redetermination independent public accountants acting as auditors for the Company on the date of the amount transaction constituting the change of Gross-Up payments otherwise required control within the meaning of Code Section 280G (or another accounting firm designated by this Section 5(f), if but for this sentence you) shall determine whether the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” sum of the present value of any “parachute payments” to be paid or provided to the Executive payable under this Agreement or otherwise does not exceed 1.10 multiplied and the present value of any other “parachute payments” received by three times you upon or after any such change of control is in excess of the Executive’s “base amount,” then the payments and benefits amount you can receive without causing you to be paid or provided under this Agreement will be reduced (or repaid subject to an excise tax with respect to such amount on account of Code Section 4999, and shall determine the Company, if previously paid or provided) to the minimum extent necessary so that no portion amount of any Excise Tax Premium and Additional Amount payable to you. The Excise Tax Premium and Additional Amount shall be paid to you as soon as practicable but in no event later than the time when the tax payment or benefit is due, including by way of withholding, and shall be net of any amounts required to the Executive, as so reduced or repaid, constitutes an “excess parachute paymentbe withheld for taxes.” (c) For purposes of this Section 5(f)(ii)Section, the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have means the meanings assigned to them by value determined in accordance with the principles of Section 1274 (b) (2) of the Code under the rules provided in Treasury Regulations under Section 280G of the Code. The determination . (d) To the extent Code Section 280G is amended prior to the termination of whether any reduction in this Agreement, or repayment is replaced by a successor statute, the provisions of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will 5 shall be made at the expense deemed modified without further action of the Company, if requested by the Executive parties in a manner consistent with such amendments or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii)successor statutes, as the case may be. In the event that Code Section 280G or any successor statute is repealed, this Section 5 shall cease to reflect properly a subsequent determination be effective on the effective date of such repeal. The parties recognize that the Executive owes more or less Excise Tax than Treasury Regulations under Code Sections 280G and 4999 may affect the amount previously determined to that may be due. If a Payment intended to paid hereunder and agree that, upon the issuance of any such regulations, this Agreement may be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 5, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made modified as in good faith by may be deemed necessary in light of the Accountants (as defined below)provisions of such regulations to achieve the purposes hereof, which shall provide the Executive and the Company with detailed supporting calculations with respect that consent to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” modifications shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also not be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; andunreasonably withheld.

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “Payment”) would be subject to the excise tax imposed by section 4999 of the Code or any successor provision (the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g6(g), and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f6(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii6(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii6(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii6(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii6(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii6(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv6(b)(iv), payments pursuant to Section 5(b)(v6(b)(v) and payments pursuant to Section 5(b)(ii6(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iii) All determinations required to be made under this Section 56, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants (as defined below), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants shall be binding upon the Company and the Executive. As a result of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company should have paid pursuant to this Section 5(f) (the “Underpayment”). If the Company exhausts its remedies pursuant to Section 5(f) and the Executive is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company to the Executive or for his benefit; anddefined

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by Xxxxxx US, any of its affiliates, one or more trusts established by Xxxxxx US for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the “Payment”a "PAYMENT") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "CODE") by reason of being "contingent on a change in ownership or control" of Xxxxxx US, within Section 280G of the Code (or any successor provision thereto) 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”"EXCISE TAX"), then the Executive shall be entitled to receive from the Company an additional payment or payments (the “Grossa "GROSS-Up Payment”UP PAYMENT") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 54, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by Xxxxxx US, and reasonably satisfactory to Executive (the Accountants (as defined below"ACCOUNTING FIRM"), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Xxxxxx US and Executive within fifteen (15) business days of the receipt of notice from the Executive Termination Date, or the Company such earlier time as is requested by Xxxxxx US; PROVIDED that has received or will receive a Payment. For the for purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the any Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable marginal rate to individuals in the state or locality of Federal income taxation for Executive's residence or place of employment in the calendar year in which the any such Gross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could that can be obtained from the deduction of such state or and local taxes if paid in such year (determined without regard taxes, taking into account limitations applicable to limitations on deductions based upon individuals subject to federal income tax at the amount highest marginal rates. All fees and expenses of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Accounting Firm shall be borne solely by Xxxxxx US. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by Xxxxxx US to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive is required to make payment of any Excise Tax or other taxes. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in the Executive’s adjusted gross incomewriting, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. Any determination by the Accountants Accounting Firm shall be binding upon the Company Xxxxxx US and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; PROVIDED, HOWEVER, that no such determination shall eliminate or reduce Xxxxxx US's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “Underpayment”"UNDERPAYMENT"). If In the Company event that Xxxxxx US exhausts its remedies pursuant to Section 5(f4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Xxxxxx US and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Xxxxxx US to or for the Company benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Xxxxxx US in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Xxxxxx US of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Xxxxxx US 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 he gives such notice to Xxxxxx US (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Xxxxxx US notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Xxxxxx US any information which is in Executive's possession reasonably requested by Xxxxxx US relating to such claim, (ii) take such action in connection with contesting such claim as Xxxxxx US 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 Xxxxxx US, (iii) cooperate with Xxxxxx US in good faith in order to effectively contest such claim, and (iv) permit Xxxxxx US to participate in any proceedings relating to such claim; PROVIDED, HOWEVER, that Xxxxxx US shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(c), Xxxxxx US 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 Executive to pay the tax claimed and xxx for his benefita refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Xxxxxx US shall determine; andPROVIDED, FURTHER, that if Xxxxxx US directs Executive to pay such claim and xxx for a refund, Xxxxxx US shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance (including the applicable Gross-Up Payment); PROVIDED, FURTHER, that if Executive is required to extend the statute of limitations to enable Xxxxxx US to contest such claim, Executive may limit this extension solely to such contested amount. Xxxxxx US's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount paid or advanced by Xxxxxx US pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Xxxxxx US's complying with the requirements of Section 4(c)) promptly pay to Xxxxxx US the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by Xxxxxx US pursuant to Section 4(c), a determination is made that Executive shall not be entitled to any refund with respect to such claim and Xxxxxx US does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the “a "Payment”") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of Willis US or Willis Holdings, within Section 280G of the Code (or axx xxxcessor xxxxxsion thereto) or any successor provision 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”"), then the Executive shall be entitled to receive from the Company an additional payment or payments (the “a "Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 54, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by Employer, and reasonably satisfactory to Executive (the Accountants (as defined below"Accounting Firm"), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Employer and Executive within fifteen (15) business days of the receipt of notice from the Executive Termination Date, or the Company such earlier time as is requested by Employer; provided that has received or will receive a Payment. For the for purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the any Gross-Up Payment, (A) it is recognized that Executive will pay federal income tax at the highest marginal rates applicable to individuals in the extent not otherwise specified herein, reasonable assumptions and approximations may calendar year in which any such Gross-Up Payment is to be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed made to pay Federal state and local income taxes at the highest effective rates applicable marginal rate to individuals in the state or locality of Federal income taxation for Executive's residence or place of employment in the calendar year in which the any such Gross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could that can be obtained from the deduction of such state or and local taxes if paid in such year (determined without regard taxes, taking into account limitations applicable to limitations on deductions based upon individuals subject to federal income tax at the amount highest marginal rates. All fees and expenses of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive is required to make payment of any Excise Tax or other taxes. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in the Executive’s adjusted gross incomewriting, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. Any determination by the Accountants Accounting Firm shall be binding upon the Company Employer and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “"Underpayment”"). If In the Company event that Employer exhausts its remedies pursuant to Section 5(f4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the Company benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. 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 Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(c), Employer 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 Executive to pay the tax claimed and sue for his benefita refund or contest the claim in any permissible manner, xxx 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 Employer shall determine; andprovided, further, that if Employer directs Executive to pay such claim and sue for a refund, Employer shall pay the amount of such claim to Xxecutive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by Executive of an amount paid by Employer pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the Sarbanes-Oxley Act of 2002, such obligation to refund shall be null xxx xxxx. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any payment payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to the Executive or for the Executive’s benefit of the Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 19) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision corresponding provisions of state or local tax law, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that after payment by the net amount Executive of the Payment and all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on , the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on Executive retains from the Gross-Up Payment provided for an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a nonemployee director of the Company prior to the Effective Date (and, therefore, the Executive’s nonemployee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 5(g)19(a) shall not be conditioned upon the Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 19, and taking into account any lost or reduced tax deductions on account of if it shall be determined that the Executive is entitled to a Gross-Up Payment, shall be equal to but that the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination portion of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company Payments that would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the treated as “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at Code does not exceed the expense of the Company, if requested by the Executive or the Company, by the Accountants Safe Harbor Amount (as defined in Section 5(f)(iii)). Appropriate adjustments will the following sentence) by more than $100,000, then no Gross-Up Payment shall be made to the Executive and the amounts previously payable under this Agreement shall be reduced so that the Payments, in the aggregate, are reduced to the Safe Harbor Amount. The “Safe Harbor Amount” is the greatest amount of payments in the nature of compensation that are contingent on a Change in Control for purposes of Section 280G of the Code that could be paid to the ExecutiveExecutive without giving rise to any Excise Tax. The reduction of the amounts payable hereunder, or if applicable, shall be made by reducing the cash payments under Section 5. For purposes of reducing the payments to the Safe Harbor Amount, only amounts not paid pursuant to payable under this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to Agreement (and no other Payments) shall be duereduced. If the reduction of the amounts payable under this Agreement would not result in a Payment intended reduction of the Payments to be provided the Safe Harbor Amount, no amounts payable under the this Agreement is required to shall be reduced pursuant to this Section 5(f)(ii19(a), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All Subject to the provisions of Section 19(c), all determinations required to be made under this Section 519, including the determination of whether and when the a Gross-Up Payment is required and of the amount of any such Gross-Up up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants Company's independent auditors or such other accounting firm agreed by the parties hereto (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment the Company within fifteen (15) 15 business days of after the receipt of notice from the Executive or the Company that the Executive has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely is requested by the Company. For the purposes of determining whether , provided that any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent determination that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the an Excise Tax is applicable and determining payable by the amount Executive shall be made on the basis of substantial authority. The Company will promptly provide copies of such supporting calculations to the Executive. The initial Gross-Up Payment, if any, as determined pursuant to this Section 19(b), shall be paid to the Executive (A) or for the benefit of the Executive to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax, and (Cii) the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Company with a written opinion that substantial authority exists for the Executive shall be deemed not to pay report any Excise Tax on his Federal income taxes at tax return and, as a result, the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment Company is not required to be made, net of the maximum reduction in Federal income taxes which could be obtained withhold Excise Tax from the deduction of such state or local taxes if paid in such year (determined without regard payments to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and . The Company will promptly provide a copy of any such opinion to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants Accounting Firm meeting the requirements of this Section 19(b) shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than made by the Company should have paid pursuant to this Section 5(f) been made (the “Underpayment”), consistent with the calculations required to be made hereunder. If In the event that the Company exhausts its remedies pursuant to Section 5(f19(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) 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 a Gross-Up Payment. Such notification shall be given as soon as practicable but not later than ten business days after the Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies 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 the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for his benefitany Excise Tax, income tax or employment tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 19(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sxx 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; andprovided, however, that if the Company directs the Executive to pay such claim and sxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance (except that if such a loan would not be permitted under applicable law, the Company may not direct the Executive to pay the claim and sxx for a refund); and further provided that any extension of the statute of limitations relating to the payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 19(c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 19(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 19(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment or distribution to the Executive Employee or for the Executive’s Employee's benefit (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise (the “"Payment”") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code or any successor provision (the “"Excise Tax”"), then the Executive Employee shall be entitled to receive from the Company Choice an additional payment (the “"Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained by the Executive Employee after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment Payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g)Section, and taking into account any lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All determinations required to be made under this Section 5Section, including whether and when the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, determinations shall be made in good faith by the Accountants (as defined below), which Choice shall request provide the Executive Employee and the Company Choice with detailed supporting calculations with respect to such Gross-Up Payment within fifteen (15) business days of at the receipt of notice from time the Executive or Employee is entitled to receive the Company that has received or will receive a Payment. For the purposes of this Section 5(f)Section, the “"Accountants” " shall mean the Company’s Choice's independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)accountants. All fees and expenses of the Accountants shall be borne solely by the CompanyChoice. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “"parachute payments” " within the meaning of section Section 280G of the Code, and all “"parachute payments” " in excess of the “"base amount” " (as defined under section Section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “"parachute payments” " or represent reasonable compensation for services actually rendered (within the meaning of section Section 280G(b)(4) of the Code) in excess of the “"base amount,” " or such “"parachute payments” " are otherwise not subject to such Excise Tax. For ; for purposes of calculating whether the Excise Tax is applicable and determining the amount of the Gross-Up Payment, (A) to Payment the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive Employee shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s Employee's adjusted gross income), ; and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s Employee's adjusted gross income. Any Gross-Up Payment with respect to any Payment shall be paid by Choice at the time the Employee is entitled to receive the Payment. Any determination by the Accountants shall be binding upon the Company Choice and the ExecutiveEmployee. As a result of uncertainty in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment made will have been an amount less than the Company Choice should have paid pursuant to this Section 5(f) (the “"Underpayment”'). If In the Company event that Choice exhausts its remedies pursuant to Section 5(f) and the Executive Employee is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by the Company Choice to the Executive or for his the Employee's benefit; and.

Excise Tax. (ia) Anything in this Agreement to the contrary notwithstanding, if in the event it shall be determined that any payment payment, award, benefit or distribution (including, without limitation, the acceleration of any payment, award, distribution or benefit), by the Company or its subsidiaries to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 19) (the a “Payment”) would be subject to the excise tax imposed by section Section 4999 of the Code or any successor provision corresponding provisions of state or local tax law, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as, the “Excise Tax”), then the Executive shall be entitled to receive from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount after payment by Executive of the Payment and all taxes (including any Excise Tax, income tax or employment tax) imposed upon the Gross-Up Payment retained by the Executive after the calculation and deduction of all Excise Taxes (including any interest or penalties imposed with respect to such taxes) on the payment and all federal, state and local income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect to such taxes) on Executive retains from the Gross-Up Payment provided for an amount equal to the excess, if any, of (i) the Excise Tax imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been imposed on the Payments if the Executive had not served as a non-employee director of the Company prior to the Effective Date (and, therefore, Executive’s non-employee director compensation had not been taken into account in the Excise Tax computation). The payment of a Gross-Up Payment under this Section 5(g)19(a) shall not be conditioned upon Executive’s termination of employment. Notwithstanding the foregoing provisions of this Section 19, and taking into account any lost or reduced tax deductions on account of the if it shall be determined that Executive is entitled to a Gross-Up Payment, shall be equal to but that the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination portion of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company Payments that would be obligated to make a Gross-Up Payment to the Executive, and the aggregate “present value” of the treated as “parachute payments” under Section 2800 of the Code does not exceed Executive Employment Agreement – Xxxxxxx X. Xxxxxxx Peak Resorts, Inc. 11 the Safe Harbor Amount (as defined in the following sentence) by more than $100,000, then no Gross-up Payment shall be made to be paid or provided to Executive and the Executive amounts payable under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will shall be reduced (or repaid so that the Payments, in the aggregate, are reduced to the Company, if previously paid or provided) to Safe Harbor Amount. The “Safe Harbor Amount” is the minimum extent necessary so greatest amount of payments in the nature of compensation that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For are contingent on a Change in Control for purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the CodeCode that could be paid to Executive without giving rise to any Excise Tax. The determination reduction of whether any reduction in or repayment the amounts payable hereunder, if applicable, shall be made by reducing the cash payments under Section 3. For purposes of such reducing the payments or benefits to be provided the Safe Harbor Amount, only amounts payable under this Agreement is required pursuant to this Section 5(f)(ii(and no other Payments) will shall be made at reduced. If the expense reduction of the Company, if requested by amounts payable under this Agreement would not result in a reduction of the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid Payments to the ExecutiveSafe Harbor Amount, or to no amounts not paid pursuant to payable under this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to shall be reduced pursuant to this Section 5(f)(ii19(a), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reduction. (iiib) All Subject to the provisions of Section 19(c), all determinations required to be made under this Section 519, including the determination of whether and when the a Gross-Up Payment is required and of the amount of any such Gross-Up Payment, and the assumptions to be utilized in arriving at such determinations, shall be made in good faith by the Accountants Company’s independent auditors or such other accounting firm agreed by the parties hereto (as defined belowthe “Accounting Firm”), which shall provide the Executive and the Company with detailed supporting calculations with respect to such Gross-Up Payment the Company within fifteen (15) 15 business days of after the receipt of notice from the Executive or the Company that Executive has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving or such earlier time as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely is requested by the Company. For the purposes of determining whether , provided that any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent determination that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the an Excise Tax is applicable and determining payable by Executive shall be made on the amount basis of the substantial authority. The Company will promptly provide copies of such supporting calculations to Executive. The Initial Gross-Up Payment, if any, as determined pursuant to this Section 19(b), shall be paid to Executive (A) or for the benefit of the Executive to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon Company’s withholding obligation with respect to applicable taxes) no later than the later of (i) the due date for the payment of any Excise Tax, and (Cii) the receipt of the Accounting Firm’s determination. If the Accounting firm determines that no Excise Tax is payable by Executive, it shall furnish the Company with a written opinion that substantial authority exists for Executive shall be deemed not to pay report any Excise Tax on his Federal income taxes at tax return and, as a result, the highest applicable marginal rate Company is not required to withhold Excise Tax from payments to Executive. The Company will promptly provide a copy of Federal income taxation for the calendar year in which the Gross-Up Payment is any such opinion to be made, net of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross income. Any determination by the Accountants Accounting Firm meeting the requirements of this Section 19(b) shall be binding upon the Company and the Executive. As a result of uncertainty the uncertainly in the application of section Section 4999 of the Code at the time of the initial determination by the Accountants Accounting Firm hereunder, it is possible that the Gross-Up Payment made Payments which will not have been an amount less than made by the Company should have paid pursuant to this Section 5(f) been made (the “Underpayment”), consistent with the calculations required to be made hereunder. If In the event that the Company exhausts its remedies pursuant to Section 5(f19(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment, if any, that has occurred and any such Underpayment shall be promptly paid by the Company to the Executive or for his benefit; the benefit of Executive. The fees and disbursements of the Accounting Firm shall be paid by the Company. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but not Later than ten business days after Executive receives written notice of such claim and shall apprise the Company of the nature of such claim and the date on which such Claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Executive Employment Agreement – Xxxxxxx X. Xxxxxxx Peak Resorts, Inc. 12 with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and

Excise Tax. (i) Anything in this Agreement to the contrary notwithstanding, if If it shall be is determined that any payment amount, right or distribution benefit paid or payable (or otherwise provided or to be provided) to the Executive by the Company or for the Executive’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms any of its affiliates under this Agreement or otherwise any other plan, program or arrangement under which Executive participates or is a party, other than amounts payable under this Section 10(d), (collectively, the “PaymentPayments”) ), would be constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (“Code”), subject to the excise tax imposed by section Section 4999 of the Code or any successor provision Code, as amended from time to time (the “Excise Tax”), and the present value of such Payments (calculated in a manner consistent with that set forth in the applicable regulations promulgated under Section 280G of the Code) is equal to or less than 110% of the threshold at which such amount becomes an “excess parachute payment,” then the amount of the Payments payable to the Executive under this Agreement shall be reduced (a “Reduction”) to the extent necessary so that no portion of such Payments payable to the Executive is subject to the Excise Tax. (ii) In the event it shall be determined that the amount of the Payments payable to the Executive is more than 110% greater than the threshold at which such amount becomes an “excess parachute payment,” then the Executive shall be entitled to receive an additional payment from the Company an additional payment (the a “Gross-Up Payment”) in an amount such that the net amount of the Payment and the Gross-Up Payment retained that, after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income and all federal, state and local income tax, employment tax taxes and Excise Tax (including any interest or penalties imposed with respect to such taxes) on the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iii) All determinations required to be made under this Section 510(d), including whether and when the a Gross-Up Payment or a Reduction is required and required, the amount of such Gross-Up Payment, Payment or Reduction and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by an independent, nationally recognized accounting firm mutually acceptable to the Accountants (as defined below), which shall provide Company and the Executive and (the Company “Auditor”); provided that in the event a Reduction is determined to be required, the Executive may determine which Payments shall be reduced in order to comply with the provisions of this Section 10(d). The Auditor shall promptly provide detailed supporting calculations with respect to such both the Company and Executive following any determination that a Reduction or Gross-Up Payment within fifteen (15) business days of the receipt of notice from the Executive or the Company that has received or will receive a Payment. For the purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”)is necessary. All fees and expenses of the Accountants Auditor shall be borne solely paid by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the Any Gross-Up Payment, (A) as determined pursuant to this Section 10(d), shall be paid by the Company to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, Executive within five (B5) good faith interpretations days of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made, net receipt of the maximum reduction in Federal income taxes which could be obtained from the deduction of such state or local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of the ExecutiveAuditor’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-Up Payment in the Executive’s adjusted gross incomedetermination. Any determination All determinations made by the Accountants Auditor shall be binding upon the Company and the Executive. As a result ; provided that if, notwithstanding the Auditor’s initial determination, the Internal Revenue Service (or other applicable taxing authority) determines that an additional Excise Tax is due with respect to the Payments, then the Auditor shall recalculate the amount of uncertainty in the application of section 4999 of the Code at the time of the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment or Reduction Amount, if applicable, based upon the determinations made will have been an amount less than by the Company should have paid pursuant to this Section 5(fInternal Revenue Service (or other applicable taxing authority) after taking into account any additional interest and penalties (the “UnderpaymentRecalculated Amount”). If the Company exhausts its remedies pursuant to Section 5(f) and the Company shall pay to the Executive is required to make a payment the excess of any Excise Tax, the Underpayment shall be promptly Recalculated Amount over the Gross-Up Payment initially paid by the Company to the Executive or for his benefit; andthe amount of the Payments after the Reduction, as applicable, within five (5) days of the receipt of the Auditor’s recalculation the Gross-Up Payment. (iv) Without limiting any earlier payment provided under this Section 10(d), the Gross-Up Payment (or Gross-Up Payments, if applicable) payable to Executive under this Section 10(d) shall be paid to him not later than the last day of Executive’s taxable year following the taxable year in which Executive remits the taxes owed by him that result in the obligation of the Company to pay him such Gross-Up Payment.

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the “a "Payment”") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of Xxxxxx US or Xxxxxx Holdings, within Section 280G of the Code (or any successor provision thereto) 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”"), then the Executive shall be entitled to receive from the Company an additional payment or payments (the “a "Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 54, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by Employer, and reasonably satisfactory to Executive (the Accountants (as defined below"Accounting Firm"), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Employer and Executive within fifteen (15) business days of the receipt of notice from the Executive Termination Date, or the Company such earlier time as is requested by Employer; provided that has received or will receive a Payment. For the for purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the any Gross-Up Payment, (A) it is recognized that Executive will pay federal income tax at the highest marginal rates applicable to individuals in the extent not otherwise specified herein, reasonable assumptions and approximations may calendar year in which any such Gross-Up Payment is to be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed made to pay Federal state and local income taxes at the highest effective rates applicable marginal rate to individuals in the state or locality of Federal income taxation for Executive's residence or place of employment in the calendar year in which the any such Gross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could that can be obtained from the deduction of such state or and local taxes if paid in such year (determined without regard taxes, taking into account limitations applicable to limitations on deductions based upon individuals subject to federal income tax at the amount highest marginal rates. All fees and expenses of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive is required to make payment of any Excise Tax or other taxes. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in the Executive’s adjusted gross incomewriting, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. Any determination by the Accountants Accounting Firm shall be binding upon the Company Employer and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or <PAGE> 9 reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “"Underpayment”"). If In the Company event that Employer exhausts its remedies pursuant to Section 5(f4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the Company benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. 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 Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(c), Employer 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 Executive to pay the tax claimed and xxx for his benefita refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; andprovided, further, that if Employer directs Executive to pay such claim and xxx for a refund, Employer shall pay the amount of such claim to Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and <PAGE> 10 Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. The reimbursement of expenses incurred by Executive due to a tax contest or litigation addressing the existence or amount of an Excise Tax liability shall be reimbursed promptly, but in no event be made later than the end of the calendar year next following the calendar year in which the taxes that are subject of the contest or litigation are remitted to the taxing authority (or if no taxes are remitted as a result of such audit or litigation, the end of the calendar year next following the calendar year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation). In addition, without extending the time of any obligation in this Section 4, any tax Gross-Up Payment shall be made no later than the end of the calendar year next following the calendar year in which the Executive remits the related tax. (d) If, after the receipt by Executive of an amount paid by Employer pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). Notwithstanding the foregoing, in the event that the obligation to refund any amount shall be a violation of the Xxxxxxxx-Xxxxx Act of 2002, such obligation to refund shall be null and void. (e) To the extent that the applicable regulations under Code Section 280G permits a later recalculation by the Employer, or requires a later recalculation, of whether the Payments are subject to the Excise Tax, the provisions of this Section 4 shall again be applied based upon such recalculation.

Excise Tax. (ia) Anything in this Agreement to In the contrary notwithstanding, if event it shall be determined that any payment payment, benefit or distribution (or combination thereof) by Employer, any of Employer's affiliates, one or more trusts established by Employer for the benefit of its employees, or any other person or entity, to the Executive or for the Executive’s benefit of Executive (whether paid or payable or distributed or distributable) distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, stock appreciation right, phantom equity awards or similar right, or the lapse or termination of any restriction on the vesting or exercisability of any of the foregoing) (the “a "Payment”") would be subject to the excise tax imposed by section Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") by reason of being "contingent on a change in ownership or control" of Xxxxxx US or Xxxxxx Holdings, within Section 280G of the Code (or any successor provision thereto) 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”"), then the Executive shall be entitled to receive from the Company an additional payment or payments (the “a "Gross-Up Payment”") in an amount such that the net amount of the Payment and the Gross-Up Payment retained after payment by the Executive after the calculation and deduction of all Excise Taxes taxes (including any interest or penalties imposed with respect to such taxes) on the payment ), including, without limitation, any income taxes (and all federal, state and local income tax, employment tax and Excise Tax (including any interest or and penalties imposed with respect to such taxesthereto) on and the Gross-Up Payment provided for in this Section 5(g), and taking into account any lost or reduced tax deductions on account of Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Payment; (ii) Notwithstanding any provision of this Agreement to the contrary, but giving effect to any redetermination Executive retains an amount of the amount of Gross-Up payments otherwise required by this Section 5(f), if but for this sentence the Company would be obligated to make a Gross-Up Payment equal to the Executive, and the aggregate “present value” of the “parachute payments” to be paid or provided to the Executive under this Agreement or otherwise does not exceed 1.10 multiplied by three times the Executive’s “base amount,” then the payments and benefits to be paid or provided under this Agreement will be reduced (or repaid to the Company, if previously paid or provided) to the minimum extent necessary so that no portion of any payment or benefit to the Executive, as so reduced or repaid, constitutes an “excess parachute payment.” For purposes of this Section 5(f)(ii), the terms “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether any reduction in or repayment of such payments or benefits to be provided under this Agreement is required pursuant to this Section 5(f)(ii) will be made at the expense of the Company, if requested by the Executive or the Company, by the Accountants (as defined in Section 5(f)(iii)). Appropriate adjustments will be made to amounts previously paid to the Executive, or to amounts not paid pursuant to this Section 5(f)(ii), as the case may be, to reflect properly a subsequent determination that the Executive owes more or less Excise Tax than imposed upon the amount previously determined to be due. If a Payment intended to be provided under the Agreement is required to be reduced pursuant to this Section 5(f)(ii), the payments shall be reduced in the following order of priority: payments pursuant to Section 5(b)(iv), payments pursuant to Section 5(b)(v) and payments pursuant to Section 5(b)(ii), with any Equity Compensation having an option feature being the last payments to be subject to reductionPayments. (iiib) All Subject to the provisions of Section 4(a) hereof, all determinations required to be made under this Section 54, including whether and when the a Gross-Up Payment is required and the amount of such Gross-Up Payment, Payment and the assumptions to be utilized in arriving at such determinationsdetermination, shall be made in good faith by a nationally recognized certified public accounting firm as may be designated by Employer, and reasonably satisfactory to Executive (the Accountants (as defined below"Accounting Firm"), which shall provide the Executive and the Company with detailed supporting calculations with respect both to such Gross-Up Payment Employer and Executive within fifteen (15) business days of the receipt of notice from the Executive Termination Date, or the Company such earlier time as is requested by Employer; provided that has received or will receive a Payment. For the for purposes of this Section 5(f), the “Accountants” shall mean the Company’s independent certified public accountants serving immediately prior to the change in control that with other events results in the imposition of the Excise Tax. If the Accountants are also serving as accountant or auditor for the individual, entity or group effecting a change in control that with other events results in the imposition of the Excise Tax, the Company shall appoint another recognized public accounting firm to make the determinations required hereunder (which accounting firm shall also be referred to herein as the “Accountants”). All fees and expenses of the Accountants shall be borne solely by the Company. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base amount” (as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole or in part) either do not constitute “parachute payments” or represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of calculating whether the Excise Tax is applicable and determining the amount of the any Gross-Up Payment, (A) to the extent not otherwise specified herein, reasonable assumptions and approximations may be made, (B) good faith interpretations of the Code may be relied upon and (C) the Executive shall be deemed to pay Federal federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable marginal rate to individuals in the state or locality of Federal income taxation for Executive's residence or place of employment in the calendar year in which the any such Gross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could that can be obtained from the deduction of such state or and local taxes if paid in such year (determined without regard taxes, taking into account limitations applicable to limitations on deductions based upon individuals subject to federal income tax at the amount highest marginal rates. All fees and expenses of the Executive’s adjusted gross income), and to have otherwise allowable deductions for Federal, state and local income tax purposes at least equal to those disallowed because of the inclusion of the Accounting Firm shall be borne solely by Employer. Any Gross-Up Payment Payment, as determined pursuant to this Section 4, shall be paid by Employer to Executive (or to the appropriate taxing authority on Executive's behalf) when due immediately prior to the date Executive is required to make payment of any excise Tax or other taxes. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in the Executive’s adjusted gross incomewriting, with an opinion that Executive has substantial authority not to report any Excise Tax on his/her federal state, local income or other tax return. Any determination by the Accountants Accounting Firm shall be binding upon the Company Employer and the ExecutiveExecutive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce Employer's obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. As a result of the uncertainty in the application of section Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding state or local tax law at the time of the initial any determination by the Accountants Accounting Firm hereunder, it is possible that the amount of the Gross-Up Payment made will have been an amount less determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the Company should have paid pursuant to this Section 5(f) amount actually due (the “"Underpayment”"). If In the Company event that the Employer exhausts its remedies pursuant to Section 5(f4(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred as promptly as possible and notify Employer and Executive of such calculations, and any such Underpayment (including the Gross-Up Payment to Executive) shall be promptly paid by Employer to or for the Company benefit of Executive within five (5) business days after receipt of such determination and calculations. (c) Executive shall notify Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by Employer of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise Employer of the nature of such claim and the date on which such claim is requested to be paid. 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 Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If Employer notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give Employer any information which is in Executive's possession reasonably requested by Employer relating to such claim, (ii) take such action in connection with contesting such claim as Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by Employer, (iii) cooperate with Employer in good faith in order to effectively contest such claim, and (iv) permit Employer to participate in any proceedings relating to such claim; provided, however, that Employer shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(c), Employer 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 Executive to pay the tax claimed and xxx for his benefita refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as Employer shall determine; andprovided, further, that if Employer directs Executive to pay such claim and xxx for a refund, Employer shall pay the amount of such claim to Executive, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such payment or with respect to any imputed income with respect to such payment (including the applicable Gross-Up Payment); provided, further, that if Executive is required to extend the statute of limitations to enable Employer to contest such claim, Executive may limit this extension solely to such contested amount. Employer's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by Executive of an amount paid by Employer pursuant to this Section 4, Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to Employer's complying with the requirements of Section 4(c)) promptly pay to Employer the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto).