Common use of Excise Taxes Clause in Contracts

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if in the event it is shall be determined that any payment payment, benefit, vesting or distribution by the Company to or for the benefit of Executive Employee (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "“Payment"”) would but for this Section 20 be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest comparable successor provisions (the “Excise Tax”), then the Payments shall be either (i) provided to Employee in full, or penalties (ii) provided to Employee as to such lesser extent which would result in no portion of such Payments being subject to the Excise Tax, whichever of the foregoing amounts, when taking into account applicable income and employment taxes, the Excise Tax, and any other applicable taxes, results in the receipt by Employee on an after-tax basis, of the greatest amount of Payments, notwithstanding that all or some portion of such Payments may be subject to the Excise Tax. Any determination required under this Section 20 shall be made in writing in good faith by the Company's independent certified public accountants, appointed prior to any change in ownership (as defined under Code Section 280G(b)(2), and/or tax counsel selected by such accountants (the “Accounting Firm”) in accordance with the principles of Section 280G of the Code. In the event of a reduction of Payments hereunder, the Payments shall be reduced as follows: (i) first from cash payments which are incurred included in full as parachute payments, (ii) second from equity awards which are included in full as parachute payments, (iii) third from cash payments which are partially included as parachute payments, and (iv) fourth from equity awards that are partially included as parachute payments. In applying these principles, any reduction or elimination of the Payments shall be made in a manner consistent with the requirements of Code Section 409A and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. For purposes of making the calculations required by Executive this Section 20, the Accounting Firm may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and Employee shall furnish to the Accounting Firm such information and documents as the Accounting Firm may reasonably request in order to make a determination under this Section 20. All fees and expenses of the Accounting Firm shall be borne solely by the Company. If, notwithstanding any reduction described in this Section 20, the Internal Revenue Service (the “IRS”) determines that Employee is liable for the Excise Tax as a result of the receipt of the Payments as described above, then Employee shall be obligated to pay back to the Company, within thirty (30) days after a final IRS determination or in the event that Employee challenges the final IRS determination, a final judicial determination, a portion of the Payments equal to the “Repayment Amount.” The Repayment Amount 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 Executive Payments shall be entitled the smallest such amount, if any, as shall be required to receive an additional payment (a "Grossbe paid to the Company so that Employee's net after-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed tax proceeds with respect to such taxes), including, without limitation, any income taxes the Payments (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the payment of the Excise Tax and all other applicable taxes imposed on such payment) shall be maximized. The Repayment Amount with respect to the Payments and the Gross-Up Payment, shall be zero if a Repayment Amount of more than zero would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the result in Employee’s net after-tax proceeds with respect to Executive resulting from an elimination the Payments being maximized. If the Excise Tax is not eliminated pursuant to this paragraph, Employee shall pay the Excise Tax. Notwithstanding any other provision of the Gross-Up Payment and this Section 20, if (i) there is a reduction of the payments, in the aggregatePayments as described in this Section 20, (ii) the IRS later determines that Employee is liable for the Excise Tax, the payment of which would result in the maximization of Employee’s net after-tax proceeds (calculated as if Employee’s Payments had not previously been reduced), and (iii) Employee pays the Excise Tax, then the Company shall pay to an amount (Employee those Payments which were reduced pursuant to this subsection as soon as administratively possible after Employee pays the "Reduced Amount") such Excise Tax so that Employee’s net after-tax proceeds with respect to the receipt Payments are maximized. For the avoidance of Payments would not give rise to doubt, Employee acknowledges she is solely responsible for the payment of any Excise Tax then no Gross-Up Payment and that the Company will not reimburse or otherwise indemnify her for such amount. Any reimbursements or repayments provided under this subsection shall be made strictly in accordance with Section 409A of the Code, including Treasury Regulation 1.409A-3(i)(1)(v). Notwithstanding anything in this Agreement to Executive and the Paymentscontrary, in if any payments or benefits due to Employee hereunder would cause the aggregateapplication of an accelerated or additional tax under Section 409A of the Code (“Section 409A”), such payments or benefits shall be reduced restructured in a manner which does not cause such an accelerated or additional tax. Without limiting the foregoing and notwithstanding anything contained herein to the Reduced Amountcontrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement during the six-month period immediately following Employee’s separation from service shall instead be paid on the first (1st) business day after the date that is six (6) months following Employee’s date of termination (or death, if earlier). In the event that Employee receives reduced payments and benefits as a result of the application of this paragraph, reduction shall be made from payments and benefits which are determined not to be nonqualified deferred compensation for purposes of Section 409A of the Code first, and then shall be made (to the extent necessary) out of payments and benefits which are subject to Section 409A of the Code and which are due at the latest future date, to the extent such reduction would not trigger adverse tax consequences under Section 409A of the Code.

Excise Taxes. a. Anything in this Agreement to 5.1 In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement (the "Contract Payments") or otherwise, but determined without regard in connection with Employee's termination of employment or contingent upon a change in control of the Company pursuant to any additional payments required under this Section 4plan or arrangement or other agreement with the Employer or the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the ") Payments"), would be subject to the excise tax (the "Excise Tax"), imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect as determined as provided below, the Employer shall pay to such excise tax (such excise taxEmployee, together with any such interest and penaltiesat the time specified in Section 5.2 below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Employee, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (the Excise Tax on Contract Payments and Other Payments and any interest federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5.1, and any interest, penalties imposed or additions to tax payable by Employee with respect thereto, shall be equal to the total present value of the Contract Payments and Other Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Employer's independent auditors and reasonably acceptable to Employee ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Section 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount Employee shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments be made and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both state and local income taxes and any Excise Tax) as compared at the highest effective rates of taxation applicable to Employee in the net after-tax proceeds to Executive resulting from an elimination of calendar year in which the Gross-Up Payment and a reduction is to be made, net of the paymentsmaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, in taking into account any limitations applicable to individuals subject to federal income tax at the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything If the Board determines, in this Agreement its good faith discretion, that Section 280G of the Code applies to any compensation payable to the contrary notwithstanding and except as set forth belowExecutive, then the provisions of this Section 5 shall apply. If any payments or benefits to which the Executive is entitled from the Company, any affiliate, any successor to the Company or an affiliate, or any trusts established by any of the foregoing by reason of, or in connection with, any transaction that occurs after the Effective Date (collectively, the “Payments,” which shall include, without limitation, the vesting of any equity awards or other non-cash benefit or property) are, alone or in the aggregate, more likely than not, if it is determined paid or delivered to the Executive, to be subject to the tax imposed by Section 4999 of the Code or any successor provisions to that section, then the Payments (beginning with any payment or distribution Payment to be paid in cash hereunder), shall be either (a) reduced (but not below zero) so that the present value of such total Payments received by the Company to or for Executive will be one dollar ($1.00) less than three times the benefit Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such Payments received by the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would shall be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, parachute payments shall be reduced to the Reduced Amountextent necessary to avoid application of the excise tax in the following order: (i) any cash severance based on a multiple of Base Salary or Annual Bonus, (ii) any other cash amounts payable to the Executive, (iii) benefits valued as parachute payments, and (iv) acceleration of vesting of any equity awards, or (b) paid in full, whichever of (a) or (b) produces the better net after tax position to the Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The determination as to whether any Payments are more likely than not to be subject to taxes under Section 4999 of the Code and as to whether reduction or payment in full of the amount of the Payments provided hereunder results in the better net after tax position to the Executive shall be made by the Board and the Executive in good faith. If, as a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is subsequently determined that additional Payments could have been made to the Executive without the imposition of the excise tax imposed by Section 4999 of the Code (an “Underpayment”), the Underpayment shall be paid by the Company to the Executive within thirty (30) days after such determination.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by the Company to or for the benefit of Executive (whether paid or amounts payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, otherwise to the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 25(b), be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest comparable successor provision (the “Excise Tax”), then such amounts payable to the Employee shall be either (y) provided to the Employee in full or penalties are incurred by Executive with respect (z) provided to the Employee to the maximum extent that would result in no portion of such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local, and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up PaymentEmployee’s receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Bank and the Employee otherwise agree in writing, any determination required under this Section 25(b) as compared to shall be made in writing in good faith by the net after-tax proceeds to Executive resulting from an elimination Bank’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the Gross-Up Payment and a reduction of the paymentstotal payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the aggregateCode: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to an amount Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the "Reduced Amount"Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Bank and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Bank shall bear all costs that the receipt of Payments would not give rise to Independent Accountants may reasonably incur in connection with any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountcalculations contemplated by this Section 25(b).

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for any successors thereto constitute “parachute payments” as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "Payment"“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iii), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "Payment"“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iii), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if in the event that it is determined by Employer, or by the Internal Revenue Service (the “IRS”) pursuant to an IRS audit (an “Audit”) of your federal income tax return(s), that any payment or distribution by the Company benefit provided to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement you hereunder or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penaltiesor penalties thereon, are hereinafter collectively is herein referred to as the “Excise Tax"”), then Executive Employer shall be entitled pay (either directly to receive the IRS as tax withholdings or to you as a reimbursement of any amount of taxes, interest and penalties paid by you to the IRS) both the Excise Tax and an additional cash payment (a "Gross-Up “Tax Neutralization Payment"”) in an amount such that after will place you in the same after-tax economic position that you would have enjoyed if the payment or benefit had not been subject to the Excise Tax. Employer will consult with its outside tax counsel at its expense, to the extent it reasonably deems appropriate, in making determinations pursuant to the preceding sentence. The amount of the Tax Neutralization Payment shall be calculated by Executive Employer’s regular independent auditors based on the amount of all taxes (including the Excise Tax paid by Employer as determined by Employer or the IRS. If the amount of the Excise Tax determined by the IRS is greater than an amount previously determined by Employer, Employer’s auditors shall recalculate the amount of the Tax Neutralization Payment. Employer’s auditors shall provide you with detailed support for its calculations. Employer shall be responsible for the fees and expenses incurred by its auditors in making these calculations. You shall promptly notify Employer of any interest or penalties imposed IRS assertion during an Audit that an Excise Tax is due with respect to any payment or benefit, but you shall be under no obligation to defend against such taxes)claim by the IRS unless Employer requests, includingin writing, without limitationthat you undertake the defense of such IRS claim on behalf of Employer and at Employer’s sole expense. In such event, Employer may elect to control the conduct to a final determination through counsel of its own choosing and at its sole expense, of any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Paymentaudit, Executive retains administrative or judicial proceeding involving an amount of the Gross-Up Payment equal asserted liability relating to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"Tax, if it is determined that Executive is entitled to a Gross-Up Paymentand you shall not settle, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") compromise or concede such that the receipt of Payments would not give rise to any asserted Excise Tax then no Gross-Up Payment and shall be made to Executive and the Payments, cooperate with Employer in the aggregate, shall be reduced to the Reduced Amounteach phase of any contest.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by the Company to or for the benefit of Executive (whether paid or amounts payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, otherwise to the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 25(b), be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest comparable successor provision (the “Excise Tax”), then such amounts payable to the Employee shall be either (y) provided to the Employee in full or penalties are incurred by Executive with respect (z) provided to the Employee to the maximum extent that would result in no portion of such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local, and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up PaymentEmployee’s receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) as compared to shall be made in writing in good faith by the net after-tax proceeds to Executive resulting from an elimination Employer’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the Gross-Up Payment and a reduction of the paymentstotal payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the aggregateCode: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to an amount Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the "Reduced Amount"Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the receipt of Payments would not give rise to Independent Accountants may reasonably incur in connection with any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountcalculations contemplated by this Section 25(b).

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined such reduction (plus that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment and a reduction of attributable to the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall be made make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it Executive is determined that a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for under this Agreement, together with any payment or distribution by other payments and benefits which Executive has the right to receive from the Company to or any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, shall be either (a) reduced (but determined without regard to any additional payments required under this not below zero) so that the present value of such total amounts and benefits received by Executive from the Company and its Affiliates will be one dollar ($1.00) less than three times Executive’s “base amount” (as defined in Section 4280G(b)(3) (a "Payment"of the Code) would and so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Section 4999 of the CodeCode or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Section 4999 of the Code and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or any interest benefits to be paid in cash hereunder in the order in which such payment or penalties are incurred by Executive benefit would be paid or provided (beginning with respect such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such excise tax (such excise taxpayment or benefit that would be made first in time) and, together with then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such interest reduction in the amount of the payments and penaltiesbenefits provided hereunder is necessary shall be made by a nationally recognized public accounting firm selected by the Company in good faith and approved by Executive, are hereinafter collectively referred to as which approval shall not be unreasonably withheld. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Excise Tax")Company (or its Affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times Executive’s base amount, then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount immediately repay such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal excess to the Excise Tax imposed Company upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined notification that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountoverpayment has been made.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it Executive is determined that a "disqualified individual" (as defined in Code Section 280G(c)), and the payments and benefits provided for under this Agreement, together with any payment or distribution by other payments and benefits which Executive has the right to receive from the Company to or any of its Affiliates, would constitute a "parachute payment" (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, shall be either (a) reduced (but determined without regard to any additional payments required under this Section 4not below zero) (a "Payment") would so that no portion of such amounts and benefits received by Executive shall be subject to the excise tax imposed by Code Section 4999 or (b) paid in full, whichever produces the better net after-tax position to Executive (taking into account any applicable excise tax under Code Section 4999 and any other applicable taxes). The reduction of payments and benefits hereunder, if applicable, shall be made by reducing, first, payments or benefits to be paid in cash hereunder in the order in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the Codepayments and benefits provided hereunder is necessary shall be made by a nationally recognized public accounting firm or other nationally recognized firm that has expertise in the area of Code Section 280G selected by the Company in good faith and approved by Executive, which approval shall not be unreasonably withheld. If a reduced payment or any interest benefit is made or penalties are incurred by provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its Affiliates) used in determining if a parachute payment exists, would subject Executive with respect to such the excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax")imposed by Code Section 4999, then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including immediately repay any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal excess to the Excise Tax imposed Company upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined notification that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountoverpayment has been made.

Excise Taxes. a. Anything in Notwithstanding any other provision of this Agreement to the contrary notwithstanding and except as set forth belowAgreement, if it is determined that any payment or distribution by portion of the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms payments and benefits provided under Section 7 of this Agreement Agreement, either alone or otherwisetogether with other payments and benefits which the Employee receives or is then entitled to receive from the Company, but determined without regard to or any additional payments required under this Section 4) successor (a "Payment") in the aggregate, “Total Payments”), would be subject to the excise tax imposed by Section section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penaltiesor penalties thereon, are hereinafter collectively is herein referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Total Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount.extent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Employee would receive in the aggregate greater payments and benefits on an after tax basis if the Total Payments were not reduced pursuant to this Section 7(d), then no such reduction shall be made. For purposes of determining the after tax benefit to the Employee, the Employee’s estimated actual blended marginal rate of federal, state and local income taxation in the calendar year in which the Termination Date occurs shall be utilized. Such marginal rate shall be determined by taking into account (A) the estimated actual net effect on the marginal rate attributable to the deduction of state and local income taxes, (B) the phase out, if any, of itemized deductions, (C) the estimated actual net tax rate attributable to employment taxes, and (D) any other tax provision that in the judgment of the Independent Tax Counsel will actually affect the Employee’s estimated actual blended marginal tax rate. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required deduction in Total Payments with the least reduction in the after-tax economic value to the Employee of such payments. If the after-tax economic value of any payments is equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Employee until the reduction specified herein is achieved. The Independent Tax Counsel shall provide its determination, together with detailed supporting calculations and documentation to the Company and the Employee within ten (10) days of the Termination Date. The determination of the Independent Tax Counsel under this Section 7(d) shall be final and binding on all parties hereto. For purposes of this Section 7(d), “

Excise Taxes. a. Anything in this Agreement Notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it the Executive is determined a “disqualified individual” (as defined in Section 280G(c) of the Code), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Executive has the right to receive from the Company of any of its Affiliates, would constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that any payment or distribution the present value of such total amounts and benefits received by the Executive from the Company to or for and its Affiliates will be one dollar ($1.00) less than three times the benefit Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) and so that no portion of such amounts and benefits received by the Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would shall be subject to the excise tax imposed by Section 4999 of the CodeCode or (b) paid in full, 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 whichever produces the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a better net after-tax benefit of at least $50,000 position to the Executive (taking into account both income taxes any applicable excise tax under Section 4999 of the Code and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a other applicable taxes). The reduction of the paymentspayments and benefits hereunder, in the aggregateif applicable, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made by reducing, first, payments or benefits to Executive and the Payments, be paid in cash hereunder in the aggregateorder in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time) and, then, reducing any benefit to be provided in kind hereunder in a similar order. The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized public accounting firm selected by the Company in good faith and approved by the Executive, which approval shall not be unreasonably withheld. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company or its Affiliates used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Executive’s base amount, then the Executive shall immediately repay such excess to the Reduced AmountCompany upon notification that an overpayment has been made.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for any successors thereto constitute “parachute payments” as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "Payment"“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iv), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iv) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iv), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iv) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything in this Subject to the provisions of any Employment Agreement and notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it the Grantee is determined a “disqualified individual” (as defined in Code Section 280G(c)), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Grantee has the right to receive from the Company or any of its affiliates or any party to a transaction with the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that any payment or distribution the present value of such total amounts and benefits received by the Grantee from the Company to or for and its affiliates will be one dollar ($1.00) less than three times the benefit Grantee’s “base amount” (as defined in Code Section 280G(b)(3)) and so that no portion of Executive (whether paid or payable or distributed or distributable pursuant to such amounts and benefits received by the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would Grantee shall be subject to the excise tax imposed by Code Section 4999 of or (b) paid in full, whichever produces the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a better net after-tax benefit of at least $50,000 position to the Grantee (taking into account both income taxes any applicable excise tax under Code Section 4999 and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a other applicable taxes). The reduction of the paymentspayments and benefits hereunder, in the aggregateif applicable, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made by reducing payments or benefits to Executive and the Payments, be paid hereunder in the aggregateorder in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized accounting firm selected by the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Grantee’s base amount, then the Grantee shall immediately repay such excess to the Reduced AmountCompany upon notification that an overpayment has been made. For the avoidance of doubt, if any Employment Agreement contains specific provisions relating to Code Section 280G and Code Section 4999, then this paragraph 16 shall not apply to the Restricted Stock Units.

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that (a) Notwithstanding any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms other provision of this Agreement or otherwiseAgreement, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to in the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be event that you become entitled to receive an additional payment or receive any payments, options, awards or benefits (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, the monetary value of any income taxes non-cash benefits and the accelerated vesting of stock awards) under this Agreement, the Severance Program or under any other plan, agreement or arrangement with the Company, any person whose actions result in a “Change of Control” (as that term is defined in the Severance Program) or any person affiliated with the Company or such person (collectively, the “Payments”), that may separately or in the aggregate constitute “parachute payments” within the meaning of Code Section 280G and any interest and penalties imposed with respect theretothe Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 9(a), any of the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “Excise Tax imposed upon Tax”), the Gross-Up Payment, Executive retains an Company shall pay to you either (i) the full amount of the Gross-Up Payment Payments or (ii) an amount equal to the Excise Tax imposed upon Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments. Notwithstanding , including the foregoing provisions Excise Tax), of this paragraph "a", if it is determined the greatest amount of Payments notwithstanding that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account all or some portion of the Payments and may be subject to the Gross-Up Payment, Excise Tax. For purposes of determining whether you would not receive a net greater after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to from the net after-tax proceeds to Executive resulting Capped Payments than from an elimination receipt of the Gross-Up Payment and a reduction full amount of the paymentsPayments and for purposes of Section 8(c) (if applicable), in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment you shall be made deemed to Executive pay federal, state and local taxes at the Payments, in highest marginal rate of taxation for the aggregate, shall be reduced to the Reduced Amountapplicable calendar year.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (the "Contract Payments") or otherwise, but determined without regard in connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any additional payments required under this Section 4plan or arrangement or other agreement with the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 5(ii) below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on Contract Payments and Other Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5(i), and any interest, penalties or additions to tax payable by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto, shall be equal to the total present value of the Contract Payments and Other Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the Excise Tax imposed upon highest effective rates of taxation applicable to individuals as are in effect in the Payments. Notwithstanding state and locality of Executive's residence in the foregoing provisions calendar year in which the Gross- Up Payment is to be made, net of this paragraph "a"the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account any limitations applicable to individuals subject to federal income tax at the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be ------------ received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest effective marginal rate of federal income taxation (taking into account the phase out of itemized deductions) in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined such reduction (plus that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment and a reduction of attributable to the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus any interest received by Executive in connection with the government's refund of such overpayment. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall be made make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if in the event that it is determined that any payment or distribution by the Company benefit provided to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseyou hereunder, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the CodeInternal Revenue Code of 1986, as amended, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penaltiesor penalties thereon, are hereinafter collectively is herein referred to as the “Excise Tax"”), then Executive Employer shall be entitled pay (either directly to receive the IRS as tax withholdings or to you as a reimbursement of any amount of taxes, interest and penalties paid by you to the IRS) both the Excise Tax and an additional cash payment (a "“Gross-Up Payment"”) in an amount such that after will place you in the same after-tax economic position that you would have enjoyed if the payment or benefit had not been subject to the Excise Tax. The determination of whether a Gross-Up Payment is due pursuant to the preceding sentence, and if so the amount thereof, shall be made by Executive of all taxes Employer; provided, however, that if you disagree with Employer’s determination, you shall have the right to require Employer to arrange for a second determination to be made by a nationally recognized law or accounting firm mutually agreeable to you and Employer (including any interest or penalties imposed with respect to such taxesthe “Tax Expert”), includingin which case the determination made by the Tax Expert, without limitationrather than by Employer, any income taxes (shall control. The Company will pay the fees and any interest and penalties imposed with respect thereto) and Excise expenses of the Tax imposed upon Expert in making the foregoing determinations, unless the calculation of the Gross-Up PaymentPayment made by the Tax Expert differs by less than 10% (plus or minus) from the calculation made by Employer, Executive retains in which case you will pay such fees and expenses. Employer may, at its expense, consult with its outside tax counsel and its independent auditors, to the extent it deems appropriate, in making determinations pursuant to this paragraph 10(e). If, upon audit or other examination by the Internal Revenue Service (the “IRS”) of your or the Company’s federal income tax return (an “Audit”), the amount of the Excise Tax determined by the IRS is greater than an amount previously determined by Employer or the Tax Expert, as applicable, then Employer or the Tax Expert, as applicable, shall recalculate the amount of the Gross-Up Payment equal and shall be instructed to provide you with detailed support for its calculations. You shall promptly notify Employer of any IRS assertion during an Audit of your federal income tax return that an Excise Tax is due with respect to any payment or benefit, but you shall be under no obligation to defend against such claim by the IRS unless Employer requests, in writing, that you undertake the defense of such IRS claim at Employer’s sole expense. In such event, Employer may elect to control the conduct to a final determination through counsel of its own choosing and at its sole expense, of any audit, administrative or judicial proceeding involving an asserted liability relating to the Excise Tax, and you shall not settle, compromise or concede such asserted Excise Tax imposed upon the Paymentsand shall cooperate with Employer in each phase of any contest. Notwithstanding the foregoing provisions of this paragraph "a"10(e), if it is shall be determined by Employer or the Tax Expert, as applicable, that Executive is you are entitled to a Gross-Up Payment, but that Executivethe aggregate value for purposes of determining if an Excise Tax is due and, after taking into account if so, the Payments amount thereof, of all payments and the Gross-Up Payment, would benefits to be provided to you under this Agreement do not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination exceed 110% of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an greatest amount (the "“Reduced Amount"”) that could be paid to you such that the your receipt of Payments such payments and benefits would not give rise to any Excise Tax Tax, then no Gross-Up Payment shall be made to Executive you, and the Paymentspayments and benefits to be provided to you, in the aggregate, shall be reduced reduced, in a manner to be determined solely by you, to the Reduced Amount. This paragraph 10(e) shall not apply with respect to a change in control or other event described in Section 280G of the Internal Revenue Code of 1986, as amended, if such event occurs after 2013, unless either (i) a contract or predecessor contract to effect such event was executed prior to 2014 and/or (ii) your employment is terminated pursuant to paragraph 10(b) or paragraph 10(c) of this Agreement prior to 2014 in anticipation of such an event.

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that (a) Notwithstanding any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms other provision of this Agreement or otherwiseAgreement, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to in the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by event that 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 Executive shall be becomes entitled to receive an additional payment or receives any payments, options, awards or benefits (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, the monetary value of any income taxes non-cash benefits and the accelerated vesting of stock options) under this Agreement or under any other plan, agreement or arrangement with Digimarc, any person whose actions result in any change described in Code Section 280G(b)(2)(A)(i) or any person affiliated with Digimarc or such person (collectively, the “Payments”), that may separately or in the aggregate constitute “parachute payments” within the meaning of Section 280G and Digimarc receives confirmation from an independent accounting firm or independent tax counsel appointed by Digimarc (the “Tax Advisor”) that, but for this Section 7, any interest and penalties imposed with respect theretoof the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “Excise Tax”), then the Company shall pay to Executive either (i) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an full amount of the Gross-Up Payment Payments or (ii) an amount equal to the Payments, reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining the after-tax value of the Payments, (i) there shall be taken into account any Excise Tax imposed upon and all applicable federal, state and local taxes required to be paid by Executive in respect of the Payments. Notwithstanding the foregoing provisions receipt of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both ii) Executive shall be deemed to pay income taxes at the highest rate of federal income tax and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination highest rate or rates of the Gross-Up Payment state and a reduction of the payments, local income taxes in the aggregatestate and locality of Executive’s domicile for income tax purposes for the taxable year in which the Payments will be made, to an amount (the "Reduced Amount") such provided that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment state and local income tax rate shall be made to Executive determined assuming that such taxes are fully deductible for federal income tax purposes, and the Payments, in the aggregate, provided further that any phase-out of itemized deductions or other items shall be reduced to the Reduced Amountignored.

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that Notwithstanding any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms other provision of this Agreement or otherwiseAgreement, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to in the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by event that 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 Executive shall be becomes entitled to receive an additional payment or receives any payments, options, awards or benefits (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, the monetary value of any income taxes non-cash benefits and the accelerated vesting of stock options) under this Agreement or under any other plan, agreement or arrangement with Digimarc, any person whose actions result in any change described in Code Section 280G(b)(2)(A)(i) or any person affiliated with Digimarc or such person (collectively, the “Payments”), that may separately or in the aggregate constitute “parachute payments” within the meaning of Section 280G and Digimarc receives confirmation from an independent accounting firm or independent tax counsel appointed by Digimarc (the “Tax Advisor”) that, but for this Section 7, any interest and penalties imposed with respect theretoof the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “Excise Tax”), then the Company shall pay to Executive either (i) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an full amount of the Gross-Up Payment Payments or (ii) an amount equal to the Payments, reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining the after-tax value of the Payments, (i) there shall be taken into account any Excise Tax imposed upon and all applicable federal, state and local taxes required to be paid by Executive in respect of the Payments. Notwithstanding the foregoing provisions receipt of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both ii) Executive shall be deemed to pay income taxes at the highest rate of federal income tax and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination highest rate or rates of the Gross-Up Payment state and a reduction of the payments, local income taxes in the aggregatestate and locality of Executive’s domicile for income tax purposes for the taxable year in which the Payments will be made, to an amount (the "Reduced Amount") such provided that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment state and local income tax rate shall be made to Executive determined assuming that such taxes are fully deductible for federal income tax purposes, and the Payments, in the aggregate, provided further that any phase-out of itemized deductions or other items shall be reduced to the Reduced Amountignored.

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that If any payment or distribution by benefit, or the acceleration of any payment or benefit, the Executive would receive from the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of under this Agreement or otherwiseotherwise in connection with a Change in Control (collectively, but determined without regard to any additional payments required under this Section 4) (a "Payment"the “Payments”) would be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then either (a) such Payments will be reduced or any interest or penalties are incurred delayed by Executive with respect the minimum amount necessary such that no portion of the Payments is subject to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment or (a "Gross-Up Payment"b) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an full amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"Payments shall be made, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executivewhichever, after taking into account all applicable taxes, including the Payments and Excise Tax, results in the Gross-Up PaymentExecutive’s receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 the greater amount. If a reduction or delay in the Payments is necessary, such reduction or delay will occur in the following order: (taking into account both income taxes 1) cancellation of accelerated vesting of stock and any Excise Tax) as compared option awards (reduced from the highest value to the net after-tax proceeds to Executive resulting from an elimination lowest value under Section 280G of the Gross-Up Payment Code) with the understanding that such awards may be replaced with the right to an equivalent cash payment at such future time because of the delisting of the underlying stock; (2) reduction or delay of cash payments (reduced from the latest payment to the earliest payment); and a (3) reduction of other benefits payable to the paymentsExecutive (reduced from the highest value to the lowest value under Section 280G of the Code). The Company will select a reputable third party professional firm to make all determinations required to be made under this provision. The Company will bear all reasonable expenses with respect to the determinations by such firm required to be made hereunder. For the avoidance of doubt, in neither the aggregateCompany nor any of its affiliates shall have any obligation to indemnify, to an amount (gross-up or otherwise pay or reimburse the "Reduced Amount") such that the receipt of Payments would not give rise to Executive for any Excise Tax then no Gross-Up Payment shall assessed on any payment or benefit made or provided, or required to be made to Executive and the Paymentsor provided, in the aggregate, shall be reduced to the Reduced AmountExecutive by the Company under this Agreement or otherwise.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "Payment"“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iv), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iv) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iv), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iv) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if it is determined in the event that any payment payments or distribution by the Company to or for the benefit of Executive (whether benefits paid or payable or distributed or distributable pursuant to the terms of this Agreement hereunder or otherwise, including, but determined without regard not limited to, under the Original Agreement, to any additional payments required under Employee (the “Payments”) would (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for this Section 4) (a "Payment") sentence, would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall such Payments will be entitled reduced to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment be equal to the Excise Tax imposed upon Reduced Amount (as defined below) if and to the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined extent that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account reduction in the Payments and the Gross-Up Paymentwould result in Employee retaining a larger amount, would not receive a net on an after-tax benefit of at least $50,000 basis (taking into account both federal, state and local income and employment taxes and any the Excise Tax) as compared ), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount” will be the largest portion of the Payments that would result in no portion of the Payments being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and Excise Tax. If a reduction of in payments or benefits constituting “parachute payments” is necessary so that the payments, in Payment equals the aggregate, to an amount (the "Reduced Amount") such that , reduction shall occur in a manner necessary to provide Employee with the receipt greatest economic benefit. If more than one manner of Payments would reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. Employee may not give rise exercise any discretion with respect to the ordering of any Excise Tax then no Gross-Up Payment reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in writing, any determination required under this Clause 12 shall be made to Executive and in writing by Employer’s or an Affiliate’s independent public accountants (the Payments“Accountants”), in the aggregate, whose determination shall be reduced conclusive and binding upon Employer and Employee for all purposes. For purposes of making the calculations required by this Clause 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Reduced AmountAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall bear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. a. Anything Notwithstanding any other provision of this Agreement, in this Agreement the event that Executive becomes entitled to receive or receives any payments, options, awards or benefits (including, without limitation, the contrary notwithstanding monetary value of any non-cash benefits and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit accelerated vesting of Executive (whether paid or payable or distributed or distributable pursuant to the terms of stock options) under this Agreement or otherwiseunder any other plan, agreement or arrangement with Digimarc, any person whose actions result in any change described in Code Section 280G(b)(2)(A)(i) or any person affiliated with Digimarc or such person (collectively, the "Payments"), that may separately or in the aggregate constitute "parachute payments" within the meaning of Section 280G and Digimarc receives confirmation from an independent accounting firm or independent tax counsel appointed by Digimarc (the "Tax Advisor") that, but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 7, any of the Payments will be subject to the any excise tax imposed by pursuant to Code Section 4999 of the Code, or any interest similar or penalties are incurred by Executive with respect to such excise tax successor provision (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Company shall pay to Executive either (i) the full amount of the Payments or (ii) an amount equal to the Payments, reduced by the minimum amount necessary to prevent any portion of the Payments from being an "excess parachute payment" (within the meaning of Section 280G) (the "Capped Payments"), whichever of the foregoing amounts results in the receipt by Executive, on an after-tax basis, of the greatest amount of Payments notwithstanding that all or some portion of the Payments may be subject to the Excise Tax. For purposes of determining the after-tax value of the Payments, (i) there shall be taken into account any Excise Tax and all applicable federal, state and local taxes required to be paid by Executive in respect of the receipt of the Payments and (ii) Executive shall be entitled deemed to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any pay income taxes (at the highest rate of federal income tax and any interest the highest rate or rates of state and penalties imposed with respect thereto) local income taxes in the state and Excise Tax imposed upon locality of Executive's domicile for income tax purposes for the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account taxable year in which the Payments and the Gross-Up Paymentwill be made, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such provided that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment state and local income tax rate shall be made to Executive determined assuming that such taxes are fully deductible for federal income tax purposes, and the Payments, in the aggregate, provided further that any phase-out of itemized deductions or other items shall be reduced to the Reduced Amountignored.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if it is determined in the event that any payment payments or distribution by the Company to or for the benefit of Executive (whether benefits paid or payable hereunder or distributed or distributable pursuant otherwise to Employee (the terms “Payments”) would (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for this Agreement or otherwisesentence, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"), then Executive shall such Payments will be entitled reduced to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment be equal to the Excise Tax imposed upon Reduced Amount (as defined below) if and to the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined extent that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account reduction in the Payments and the Gross-Up Paymentwould result in Employee retaining a larger amount, would not receive a net on an after-tax benefit of at least $50,000 basis (taking into account both federal, state and local income and employment taxes and any the Excise Tax) as compared ), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount" will be the largest portion of the Payments that would result in no portion of the Payments being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and Excise Tax. If a reduction of in payments or benefits constituting “parachute payments" is necessary so that the payments, in Payment equals the aggregate, to an amount (the "Reduced Amount") such that , reduction shall occur in a manner necessary to provide Employee with the receipt greatest economic benefit. If more than one manner of Payments would reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. Employee may not give rise exercise any discretion with respect to the ordering of any Excise Tax then no Gross-Up Payment reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in writing, any determination required under this Clause 12 shall be made to Executive and in writing by Employer’s or an Affiliate’s independent public accountants (the Payments“Accountants"), in the aggregate, whose determination shall be reduced conclusive and binding upon Employer and Employee for all purposes. For purposes of making the calculations required by this Clause 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Reduced AmountAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall bear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (the "Contract Payments") or otherwise, but determined without regard in connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any additional payments required under this Section 4plan or arrangement or other agreement with the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 5(ii) below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on Contract Payments and Other Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 5(i), and any interest, penalties or additions to tax payable by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto, shall be equal to the total present value of the Contract Payments and Other Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments be made and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both state and local income taxes at the highest effective rates of taxation applicable to individuals as are in effect in the state and any Excise Tax) as compared to locality of Executive's residence in the net after-tax proceeds to Executive resulting from an elimination of calendar year in which the Gross-Up Payment and a reduction is to be made, net of the paymentsmaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, in taking into account any limitations applicable to individuals subject to federal income tax at the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (the "Contract Payments") or otherwise, but determined without regard in connection with the Executive's termination of employment or contingent upon a change in ownership or control of the Company (as defined in Section 280G of the Code) pursuant to any additional payments required under this Section 4plan or arrangement or other agreement with the Company (or any affiliate thereof) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect as determined as provided below, the Company shall pay to such excise tax (such excise taxExecutive, together with any such interest and penaltiesat the time specified in Section 12(c)(ii) below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Executive, after deduction of the Excise Tax on Contract Payments and Other Payments and any federal, state and local income or other tax and Excise Tax upon the payment provided for by Executive of all taxes (including any interest or penalties imposed with respect to such taxesthis Section 12(c)(i), including, without limitation, any income taxes (and any interest and interest, penalties imposed or additions to tax payable by the Executive with respect thereto, shall be equal to the total present value of the Contract Payments and Other Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an amount shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments be made and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both state and local income taxes at the highest effective rates of taxation applicable to individuals as are in effect in the state and any Excise Tax) as compared to locality of the net after-tax proceeds to Executive resulting from an elimination of Executive's residence in the calendar year in which the Gross-Up Payment and a reduction is to be made, net of the paymentsmaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, in taking into account any limitations applicable to individuals subject to federal income tax at the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything in this Subject to the provisions of any Employment Agreement and notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it the Grantee is determined a “disqualified individual” (as defined in Code Section 280G(c)), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Grantee has the right to receive from the Company or any of its affiliates or any party to a transaction with the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that any payment or distribution the present value of such total amounts and benefits received by the Grantee from the Company to or for and its affiliates will be one dollar ($1.00) less than three times the benefit Grantee’s “base amount” (as defined in Code Section 280G(b)(3)) and so that no portion of Executive (whether paid or payable or distributed or distributable pursuant to such amounts and benefits received by the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would Grantee shall be subject to the excise tax imposed by Code Section 4999 of or (b) paid in full, whichever produces the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a better net after-tax benefit of at least $50,000 position to the Grantee (taking into account both income taxes any applicable excise tax under Code Section 4999 and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a other applicable taxes). The reduction of the paymentspayments and benefits hereunder, in the aggregateif applicable, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made by reducing payments or benefits to Executive and the Payments, be paid hereunder in the aggregateorder in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized accounting firm selected by the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Grantee’s base amount, then the Grantee shall immediately repay such excess to the Reduced AmountCompany upon notification that an overpayment has been made. For the avoidance of doubt, if any Employment Agreement contains specific provisions relating to Code Section 280G and Code Section 4999, then this paragraph 15 shall not apply to the Restricted Stock.

Excise Taxes. a. Anything In the event that Executive becomes entitled to payments under Section 2 of this Agreement, or as a result of acceleration of awards under the Company’s Long-Term Incentive Plan or any successor plan, or awards under the EAR Plan, or any other payments or benefits received or treated as having been received by Executive in this Agreement to connection with a change in the contrary notwithstanding and except as set forth below, if it is determined that any payment ownership or distribution by effective control of the Company to or for in the benefit ownership of Executive a substantial portion of its assets within the meaning of Section 280G(b)(2)(A) of the Internal Revenue Code of 1986, as amended (the “Code”) (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, the Severance Agreement, or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4person whose actions result in such a change or any person affiliated with the Company or such person) (a "Payment") would “the Agreement Payments”), if any of the Agreement Payments will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Code, or any interest or penalties are incurred by the Company shall pay to 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 Executive shall be entitled to receive an additional payment amount (a "the “Gross-Up Payment"”) in an amount such that after payment the net amount retained by Executive after deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Agreement Payments and any interest federal, state and penalties imposed with respect thereto) local income tax and Excise Tax imposed upon the payment provided for by this Section 10, shall be equal to the Agreement Payments. If Executive’s employment has terminated, such Gross-Up Payment, Executive retains an amount Payment shall be made on the eighth day following Executive’s termination; provided that any portion of the Gross-Up Payment equal that relates to Agreement Payments made pursuant to Section 2 of this Agreement or severance pay benefits under the Severance Agreement may not be made earlier than the date specified in Section 2(g), if applicable; and further provided that Executive has delivered (and has not revoked) an executed release of claims in the form attached to this Agreement as Exhibit A (as such release is updated from time to time to reflect legal requirements). If Executive’s employment has not terminated, the Gross-up Payment shall be made on the fifth day following Executive’s receipt of the Agreement Payment. For purposes of determining whether payments or benefits of the types referred to above are Agreement Payments and whether any of the Agreement Payments will be subject to the Excise Tax imposed upon and the Paymentsamount of such Excise Tax, (i) any such payments or benefits received or to be received by Executive shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by one of the “Big 4” independent registered public accounting firms and acceptable to Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Agreement Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Agreement Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(I) of the Code (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by one of the “Big 4” independent registered public accounting firms in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. Notwithstanding the foregoing provisions of this paragraph "a"Section 10, if it is shall be determined that Executive is entitled to a the Gross-Up Payment, but that Executivethe value of the Agreement Payments does not exceed 330% of the base amount (as defined in Section 280G(d)(3) of the Code), after taking into account the Payments and the Gross-Up Paymentthen, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the paymentsfollowing sentence, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement shall be reduced so that the value of the Agreement Payments, in the aggregate, equals one dollar less than 300% of the base amount. The reduction described in the preceding sentence shall apply only if the value of the reduction is equal to or less than 30% of the Executive’s base salary as of the Change in Control; otherwise there shall be reduced no reduction and the Executive will be entitled to the Reduced AmountGross-Up Payment. To the extent applicable, the reduction in Agreement Payments contemplated by this Section shall be implemented by reducing the Agreement Payments in the following order: (I) the additional pension benefit payable pursuant to Section 2(d), (II) Gross-Up Payments determined under this Section 10, (III) cash severance benefits payable pursuant to Section 2(b), and (IV) cash severance benefits payable pursuant to the Severance Agreement. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Gross-Up Payment required in respect of Agreement Payments other than under Section 2 of this Agreement and severance pay provided under the Severance Agreement shall be payable whether or not Executive’s employment terminates. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Executive’s termination of employment, the Executive shall repay to the Company at the time that, the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by him if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax and any interest or penalties in respect thereof is determined to exceed the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable with respect to such excess) at the time that the amount of such excess is finally determined.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G (or any successor provision thereto) of the benefit Internal Revenue Code of Executive 1986, as amended (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise“Code” and any such payments and benefits, but determined without regard to any additional payments required under this Section 4“Parachute Payments”) (a "Payment") that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iii), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything in this Subject to the provisions of any Employment Agreement and notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it the Grantee is determined a “disqualified individual” (as defined in Code Section 280G(c)), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Grantee has the right to receive from the Company or any of its affiliates or any party to a transaction with the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that any payment or distribution the present value of such total amounts and benefits received by the Grantee from the Company to or for and its affiliates will be one dollar ($1.00) less than three times the benefit Grantee’s “base amount” (as defined in Code Section 280G(b)(3)) and so that no portion of Executive (whether paid or payable or distributed or distributable pursuant to such amounts and benefits received by the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would Grantee shall be subject to the excise tax imposed by Code Section 4999 of or (b) paid in full, whichever produces the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a better net after-tax benefit of at least $50,000 position to the Grantee (taking into account both income taxes any applicable excise tax under Code Section 4999 and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a other applicable taxes). The reduction of the paymentspayments and benefits hereunder, in the aggregateif applicable, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made by reducing payments or benefits to Executive and the Payments, be paid hereunder in the aggregateorder in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized accounting firm selected by the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Grantee’s base amount, then the Grantee shall immediately repay such excess to the Reduced AmountCompany upon notification that an overpayment has been made. For the avoidance of doubt, if any Employment Agreement contains specific provisions relating to Code Section 280G and Code Section 4999, then this paragraph 19 shall not apply to the Performance Shares.

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive retains an and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax imposed upon is finally determined to be less than the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking amount taken into account the Payments and hereunder in calculating the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared the Executive shall repay to the net after-tax proceeds to Executive resulting from an elimination Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment and a attributable to such reduction (plus that portion of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall be made make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by the Company to or for the benefit of Executive (whether paid or amounts payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, otherwise to the Employee would (1) constitute "parachute payments" within the meaning of Section 280G of the Code or any comparable successor provision and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 25(b), be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by Executive with respect to such excise tax comparable successor provision (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive such amounts payable to the Employee shall be entitled either (y) provided to receive an additional payment the Employee in full or (a "Gross-Up Payment"z) provided to the Employee to the maximum extent that would result in an amount no portion of such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal benefits being subject to the Excise Tax imposed upon the Payments. Notwithstanding Tax, whichever of the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local, and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up PaymentEmployee's receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) as compared to shall be made in writing in good faith by the net after-tax proceeds to Executive resulting from an elimination Employer's independent accounting firm (the "Independent Accountants"). In the event of a reduction in benefits hereunder, the Gross-Up Payment and a reduction of the paymentstotal payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the aggregateCode: (I) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to an amount Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the "Reduced Amount"Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) ally acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the receipt of Payments would not give rise to Independent Accountants may reasonably incur in connection with any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountcalculations contemplated by this Section 25(b).

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if it is determined in the event that any payment payments or distribution by the Company to or for the benefit of Executive (whether benefits paid or payable hereunder or distributed or distributable pursuant otherwise to Employee (the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment“Payments") would (a) constitute “parachute payments" within the meaning of Section 280G of the Code, and (b) but for this sentence, would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"), then Executive shall such Payments will be entitled reduced to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment be equal to the Excise Tax imposed upon Reduced Amount (as defined below) if and to the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined extent that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account reduction in the Payments and the Gross-Up Paymentwould result in Employee retaining a larger amount, would not receive a net on an after-tax benefit of at least $50,000 basis (taking into account both federal, state and local income and employment taxes and any the Excise Tax) as compared ), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount" will be the largest portion of the Payments that would result in no portion of the Payments being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and Excise Tax. If a reduction of in payments or benefits constituting “parachute payments" is necessary so that the payments, in Payment equals the aggregate, to an amount (the "Reduced Amount") such that , reduction shall occur in a manner necessary to provide Employee with the receipt greatest economic benefit. If more than one manner of Payments would reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. Employee may not give rise exercise any discretion with respect to the ordering of any Excise Tax then no Gross-Up Payment reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in writing, any determination required under this Clause 12 shall be made to Executive and in writing by Employer’s or an Affiliate’s independent public accountants (the Payments“Accountants"), in the aggregate, whose determination shall be reduced conclusive and binding upon Employer and Employee for all purposes. For purposes of making the calculations required by this Clause 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Reduced AmountAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall bear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be ------------ received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest effective marginal rate of federal income taxation (taking into account the phase out of itemized deductions) in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross- Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment equal attributable to the Excise Tax and federal, state and local income and employment taxes imposed upon on the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up PaymentPayment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, but state or local income or employment tax deduction) plus any interest received by Executive in connection with the government's refund of such overpayment. In the event that Executive, after taking the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Payments and Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from Company shall make an elimination of the additional Gross-Up Payment and a reduction in respect of such excess (plus any interest, penalties or additions payable by the payments, in Executive with respect to such excess) at the aggregate, to an amount (the "Reduced Amount") such time that the receipt amount of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in In the event that any benefits payable to Executive pursuant to this Agreement to (“Payments”) (i) constitute “parachute payments” within the contrary notwithstanding meaning of Section 280G of the Internal Revenue Code, as amended (the “Code”), and except as set forth below, if it is determined that any payment or distribution by the Company to or (ii) but for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") 6.1 would be subject to the excise tax imposed by Section 4999 of the Code, or any interest comparable successor provisions (the “Excise Tax”), then Executive’s Payments hereunder shall be either (i) provided to Executive in full, or penalties are incurred by (ii) provided to Executive with respect as to such excise tax (lesser extent which would result in no portion of such excise tax, together with any such interest and penalties, are hereinafter collectively referred benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up Paymentreceipt by Executive, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax) , as compared determined by the Company with the input of accounting advisors and confirmed by the Committee. In the event that the payments and/or benefits are to the net after-tax proceeds be reduced pursuant to Executive resulting from an elimination of the Gross-Up Payment this Section 6.1, such payments and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") benefits shall be reduced such that the receipt reduction of Payments would not give rise compensation to any Excise Tax then no Gross-Up Payment be provided to Executive as a result of this Section 6.1 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A (as defined below) and where two economically equivalent amounts are subject to Executive and the Paymentsreduction but payable at different times, in the aggregate, such amounts shall be reduced on a pro rata basis but not below zero. For purposes of making the calculations required by this Section 6.1, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of the Code, and other applicable legal authority. The Company and the applicable Executive shall furnish to the Reduced AmountAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 6.1.

Excise Taxes. a. Anything in this Agreement If Executive becomes entitled to payments ("CIC Payments") from Reynolds or any Successor (as defined belox) xxxx are subject to the contrary notwithstanding tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Executive shall receive at the time specified below an additional amount ("Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the CIC Payments and except as set forth belowany federal, if it is determined that state and local income tax and Excise Tax upon the payment provided for by this Section 3(g), shall be equal to the CIC Payments (net of any payment required payroll withholding taxes on the CIC Payments themselves). For purposes of determining whether any payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any payments or distribution benefits received or to be received by the Company to Executive in connection with a Change in Control or for the benefit of Executive Executive's Termination (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseunder any other plan, but determined without regard to arrangement or agreement with Reynolds, with any additional payments required under this person whose actions result ix x Xxange in Control, or with any person affiliated with Reynolds or such person (all such pexxxxx xther than Reynolds, "Successors")) shall be treatex xx "xarachute payments" within the meaning of Section 4280G(b)(2) (a of the Code, and all "Payment"excess parachute payments" within the meaning of Section 280G(b)(1) would shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel selected by Reynolds' independent auditors and acceptable tx Xxxxxtive such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or any interest or penalties are incurred by Executive with respect otherwise not subject to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax", (ii) the amount of the payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), then Executive and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be entitled to receive an additional payment (a "Gross-Up Payment") determined by Reynolds' independent auditors in an amount such that after payment by Executive accordaxxx xxxh the principles of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoSections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of 11 the Gross-Up Payment, Executive retains an shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination, Executive shall repay to Reynolds at the time that the amount of xxxx xxxuction in Excise Tax is finally determined the portion of the Gross-Up Payment equal attributable to such reduction (plus the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount"Excise Tax and/or a federal and state and local income tax reduction) such that the receipt of Payments would not give rise plus interest received by Executive attributable to any Excise Tax then no refund. If the Excise Tax is determined to exceed the amount taken into account hereunder at the Date of Termination (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Reynolds shall make an additional gross-up xxxxxxx in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-Up Payment shall be made not later than the fifth business day following the Date of Termination; provided however, that if the amount of such payment cannot be finally determined on or before such day, Reynolds shall pay Executive on such day ax xxxxxxte as determined in good faith by Reynolds of the minimum amount of such payment xxx shall pay the remainder of such payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the Date of Termination. If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Reynolds to Executive and payable on the Paymentsfifth xxxxxxxs day after demand by Reynolds (together with interest at the rxxx xxxvided in Section 1274(b)(2)(B) of the Code). Anything herein to the contrary notwithstanding, in the aggregate, any Gross-Up Payment otherwise due to Executive hereunder shall be reduced to by the Reduced Amountamount of any similar type of gross-up payments already received by Executive from Reynolds or any Successor outside this Agrxxxxxx.

Excise Taxes. a. Anything in this Subject to the provisions of any Employment Agreement and notwithstanding anything to the contrary notwithstanding and except as set forth belowin this Agreement, if it the Grantee is determined a “disqualified individual” (as defined in Code Section 280G(c)), and the payments and benefits provided for under this Agreement, together with any other payments and benefits which the Grantee has the right to receive from the Company or any of its affiliates or any party to a transaction with the Company or any of its affiliates, would constitute a “parachute payment” (as defined in Code Section 280G(b)(2)), then the payments and benefits provided for under this Agreement shall be either (a) reduced (but not below zero) so that any payment or distribution the present value of such total amounts and benefits received by the Grantee from the Company to or for and its affiliates will be one dollar ($1.00) less than three times the benefit Grantee’s “base amount” (as defined in Code Section 280G(b)(3)) and so that no portion of Executive (whether paid or payable or distributed or distributable pursuant to such amounts and benefits received by the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would Grantee shall be subject to the excise tax imposed by Code Section 4999 of or (b) paid in full, whichever produces the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a better net after-tax benefit of at least $50,000 position to the Grantee (taking into account both income taxes any applicable excise tax under Code Section 4999 and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a other applicable taxes). The reduction of the paymentspayments and benefits hereunder, in the aggregateif applicable, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made by reducing payments or benefits to Executive and the Payments, be paid hereunder in the aggregateorder in which such payment or benefit would be paid or provided (beginning with such payment or benefit that would be made last in time and continuing, to the extent necessary, through to such payment or benefit that would be made first in time). The determination as to whether any such reduction in the amount of the payments and benefits provided hereunder is necessary shall be made by a nationally recognized accounting firm selected by the Company. If a reduced payment or benefit is made or provided and through error or otherwise that payment or benefit, when aggregated with other payments and benefits from the Company (or its affiliates) used in determining if a parachute payment exists, exceeds one dollar ($1.00) less than three times the Grantee’s base amount, then the Grantee shall immediately repay such excess to the Reduced AmountCompany upon notification that an overpayment has been made. For the avoidance of doubt, if any Employment Agreement contains specific provisions relating to Code Section 280G and Code Section 4999, then this paragraph 18 shall not apply to the Performance Shares.

Excise Taxes. a. Anything in this Agreement to 4.1 In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable Employee pursuant to the terms of this Agreement (the "Contract Payments") or otherwise, but determined without regard in connection with Employee's termination of employment or contingent upon a change in control of the Company pursuant to any additional payments required under this Section 4plan or arrangement or other agreement with the Employer or the Company (or any affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the ") Payments"), would be subject to the excise tax (the "Excise Tax"), imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect as determined as provided below, the Employer shall pay to such excise tax (such excise taxEmployee, together with any such interest and penaltiesat the time specified in Section 4.2 below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by Employee, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (the Excise Tax on Contract Payments and Other Payments and any interest federal, state and local income or other tax and Excise Tax upon the payment provided for by this Section 4.1, and any interest, penalties imposed or additions to tax payable by Employee with respect thereto, shall be equal to the total present value of the Contract Payments and Other Payments at the time such Payments are to be made. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent tax counsel selected by the Employer's independent auditors and reasonably acceptable to Employee ("Tax Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of Section 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an amount Employee shall be deemed to pay federal income tax at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment equal is to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments be made and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both state and local income taxes and any Excise Tax) as compared at the highest effective rates of taxation applicable to Employee in the net after-tax proceeds to Executive resulting from an elimination of calendar year in which the Gross-Up Payment and a reduction is to be made, net of the paymentsmaximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, in taking into account any limitations applicable to individuals subject to federal income tax at the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything in this Agreement Notwithstanding anything herein to the contrary notwithstanding and except as set forth belowcontrary, if it is determined in the event that any payment payments or distribution by the Company to or for the benefit of Executive (whether benefits paid or payable or distributed or distributable pursuant to the terms of this Agreement hereunder or otherwise, including, but determined without regard not limited to, under the Original Agreement, to any additional payments required under Employee (the “Payments”) would (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but for this Section 4) (a "Payment") sentence, would be subject to the excise tax imposed by Section 4999 of Xxxxxx X. Xxxxxxxx Employment Agreement 1 October 2011 Page 11 the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall such Payments will be entitled reduced to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment be equal to the Excise Tax imposed upon Reduced Amount (as defined below) if and to the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined extent that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account reduction in the Payments and the Gross-Up Paymentwould result in Employee retaining a larger amount, would not receive a net on an after-tax benefit of at least $50,000 basis (taking into account both federal, state and local income and employment taxes and any the Excise Tax) as compared ), than if Employee received the entire amount of such Payments in accordance with their existing terms. The “Reduced Amount” will be the largest portion of the Payments that would result in no portion of the Payments being subject to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and Excise Tax. If a reduction of in payments or benefits constituting “parachute payments” is necessary so that the payments, in Payment equals the aggregate, to an amount (the "Reduced Amount") such that , reduction shall occur in a manner necessary to provide Employee with the receipt greatest economic benefit. If more than one manner of Payments would reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and benefits shall be reduced pro rata. Employee may not give rise exercise any discretion with respect to the ordering of any Excise Tax then no Gross-Up Payment reductions of payments or benefits under this Clause 12. Unless the Parties otherwise agree in writing, any determination required under this Clause 12 shall be made to Executive and in writing by Employer’s or an Affiliate’s independent public accountants (the Payments“Accountants”), in the aggregate, whose determination shall be reduced conclusive and binding upon Employer and Employee for all purposes. For purposes of making the calculations required by this Clause 12, the Accountants may make reasonable assumptions and approximations concerning applicable taxes. The Parties shall furnish to the Reduced AmountAccountants such information and documents as the Accountants may reasonably request in order to make a determination under this Clause 12. Employer shall bear all costs incurred for and by the Accountants in connection with any calculations or determinations contemplated by this Clause 12.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by the Company to or for the benefit of Executive (whether paid or amounts payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, otherwise to the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 25(b). be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest comparable successor provision (the “Excise Tax”), then such amounts payable to the Employee shall be either (y) provided to the Employee in full or penalties are incurred by Executive with respect (z) provided to the Employee to the maximum extent that would result in no portion of such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local, and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up PaymentEmployee’s receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Employer and the Employee otherwise agree in writing, any determination required under this Section 25(b) as compared to shall be made in writing in good faith by the net after-tax proceeds to Executive resulting from an elimination Employer’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the Gross-Up Payment and a reduction of the paymentstotal payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the aggregateCode: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to an amount Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the "Reduced Amount"Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Employer and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Employer shall bear all costs that the receipt of Payments would not give rise to Independent Accountants may reasonably incur in connection with any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountcalculations contemplated by this Section 25(b).

Excise Taxes. a. Anything in this Agreement to the contrary notwithstanding and except as set forth below, if it is determined that (a) Notwithstanding any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms other provision of this Agreement or otherwiseAgreement, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be subject to in the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be event that you become entitled to receive an additional payment or receive any payments, options, awards or benefits (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, the monetary value of any income taxes non-cash benefits and the accelerated vesting of stock awards) under this Agreement, the Severance Program or under any other plan, agreement or arrangement with the Company, any person whose actions result in a “Change of Control” (as that term is defined in the Severance Program) or any person affiliated with the Company or such person (collectively, the “Payments”), that may separately or in the aggregate constitute “parachute payments” within the meaning of Code Section 280G and any interest and penalties imposed with respect theretothe Treasury regulations promulgated thereunder (“Section 280G”) and it is determined that, but for this Section 9(a), any of the Payments will be subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “Excise Tax imposed upon Tax”), the Gross-Up Payment, Executive retains an Company shall pay to you either (i) the full amount of the Gross-Up Payment Payments or (ii) an amount equal to the Excise Tax imposed upon Payments reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payment” (within the meaning of Section 280G) (the “Capped Payments”), whichever of the foregoing amounts results in the receipt by you, on an after-tax basis (with consideration of all taxes incurred in connection with the Payments. Notwithstanding , including the foregoing provisions Excise Tax), of this paragraph "a", if it is determined the greatest amount of Payments notwithstanding that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account all or some portion of the Payments and may be subject to the Gross-Up Payment, Excise Tax. For purposes of determining whether you would not receive a net greater after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to from the net after-tax proceeds to Executive resulting Capped Payments than from an elimination receipt of the Gross-Up Payment and a reduction full amount of the paymentsPayments and for purposes of Section 9(c) (if applicable), in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment you shall be made deemed to Executive pay federal, state and local taxes at the Payments, in highest marginal rate of taxation for the aggregate, shall be reduced to the Reduced Amountapplicable calendar year.

Excise Taxes. a. Anything in this Agreement to In the contrary notwithstanding and except as set forth below, if event it is shall be determined that any payment payment, benefit or distribution (or combination thereof) by the Company Employer, any of its affiliates, or one or more trusts established by the Employer for the benefit of its employees, to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would be is subject to the excise tax imposed by Section 4999 of the Code, Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then the Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"Section 5.4, if it is shall be determined that the Executive is would otherwise be entitled to a Gross-Up PaymentPayment hereunder, but that Executive, after taking into account the Payments and do not exceed 110% of the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared greatest amount that could be paid to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give without giving rise to any Excise Tax (the "Safe Harbor Amount"), then no Gross-Up Payment shall be made to the Executive and the amounts payable under this Agreement shall be reduced so that the Payments, in the aggregate, shall be are reduced to the Reduced Safe Harbor Amount. In the event the provisions of this Section 5.4 become applicable, the terms set forth in Appendix A attached to this Agreement shall also apply and are hereby incorporated by reference into this Agreement.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute “parachute payments” as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "Payment"“Parachute Payments”) that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax"”), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments is equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iii), “Independent Tax Counsel” shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive’s acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute "parachute payments" as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "PaymentParachute Payments") that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iii), "Independent Tax Counsel" shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute "parachute payments" as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "PaymentParachute Payments") that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(g)(iii), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(g)(iii) shall be final and binding on all parties hereto. For purposes of this Section 3(g)(iii), "Independent Tax Counsel" shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(g)(iii) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest effective marginal rate of federal income taxation (taking into account the phase out of itemized deductions) in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross- Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined such reduction (plus that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment and a reduction of attributable to the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus any interest received by Executive in connection with the government's refund of such overpayment. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall be made make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in this Agreement to (a) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution benefit received or to be received by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable you pursuant to the terms of this Agreement in connection with and contingent on the termination of your employment with the Company (the "Contract Payments") or otherwiseof any other plan, but determined without regard to arrangement or agreement of the Company (or any additional payments required under this Section 4affiliate) (a "PaymentOther Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 (as amended from time to time, the "Code") as determined as provided below, or any interest or penalties are incurred by Executive with respect the Company shall pay to such excise tax (such excise taxyou, together with any such interest and penaltiesat the time specified in Section 7(b) below, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by you, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (the Excise Tax on Payments and any interest federal, state and penalties imposed with respect thereto) local income tax and the Excise Tax imposed upon the Gross-Up Payment, Executive retains an and any interest, penalties or additions to tax payable by you with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in Section 1274(d) of the Code in such calculation) of the Payments at the time such Payments are to be made. The Company shall have the right to make any such Gross-Up Payment, in whole or in part, in the form of a noncash payment of equal value (as determined by Independent Counsel) to that portion of the Gross-Up Payment had it been paid in cash. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, (1) the total amount of the Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent counsel selected by the Company and reasonably acceptable to you ("Independent Counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (2) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of section 280G(b)(1) of the Code (after applying clause (1) hereof), and (3) the value of any noncash benefits or any deferred payment or benefit included in the Payments or Gross-Up Payment, as applicable, shall be determined by Independent Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment equal Payment, you shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to the Excise Tax imposed upon individuals in the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of calendar year in which the Gross-Up Payment is to be made and a reduction state and local income taxes at the highest marginal rates of the payments, taxation applicable to individuals as are in effect in the aggregate, to an amount (state and locality of your residence in the "Reduced Amount") such that calendar year in which the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall is to be made made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to Executive and individuals subject to federal income tax at the Payments, in the aggregate, shall be reduced to the Reduced Amounthighest marginal rates.

Excise Taxes. a. Anything in Notwithstanding any other provision of this Agreement to the contrary notwithstanding and except as set forth belowcontrary, if it is determined that any payment or distribution by benefit the Executive would receive from the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of under this Agreement or otherwiseotherwise (including, without limitation, any payment, benefit, entitlement or distribution paid or provided by the person or entity effecting the change in control) in connection with a change of control (the “Total Payments”) (a) constitute “parachute payments” within the meaning of Section 280G of the Code, and (b) but determined without regard to any additional payments required under for this Section 4) (a "Payment") 11, would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by then 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 Executive shall will be entitled to receive an additional payment either (a "Gross-Up Payment"i) in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an full amount of the Gross-Up Payment Total Payments (taking into account the full value of the equity awards), or (ii) a portion of the Total Payments having a value equal to $1 less than three (3) times the Excise Tax imposed upon Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Payments. Notwithstanding the foregoing provisions Code), whichever of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executiveclauses (i) and (ii), after taking into account the Payments applicable federal, state, and local income and employment taxes and the Gross-Up Paymentexcise tax imposed by Section 4999 of the Code, would not receive a net results in the receipt by the Executive, on an after-tax benefit basis, of at least $50,000 the greatest portion of the Total Payments. Any determination required under this Section 11 shall be made in writing by the independent public accountants of the Company (taking into account both income the “Accountants”), whose determination shall be conclusive and binding for all purposes upon the Company and the Executive. For purposes of making the calculations required by this Section 11, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and any Excise Tax) as compared may rely on reasonable, good-faith interpretations concerning the application of Sections 280G and 4999 of the Code. If there is a reduction pursuant to this Section 11 of the Total Payments to be delivered to the net after-tax proceeds Executive, such reduction shall occur in the following order: (i) any cash severance payable by reference to Executive resulting from an elimination the Executive’s Base Salary or annual bonus, (ii) any other cash amount payable to Executive, (iii) any benefit valued as a “parachute payment,” and (iv) acceleration of vesting of any equity award. This Section 11 shall not apply, however, to any payment or benefit if the application of Section 280G(b)(5) of the Gross-Up Payment and Code to such payment or benefit results in such payment or benefit not constituting a reduction parachute payment under Section 280G(b)(2). For the avoidance of the paymentsdoubt, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of event additional Total Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be are made to the Executive and after the Paymentsapplication of the cutback in this Section 11, which additional Total Payments result in the aggregatecutback no longer being applicable, the Company shall pay the Executive an additional amount equal to the value of the Total Payments which were originally cutback. The Company shall determine at the end of each calendar year whether any such restoration is necessary based on additional Total Payments (if any) made during such calendar year, and shall pay such restoration not later than March 15 of the following calendar year. For purposes of determining the order of reduction of amounts payable under the Policy, the order of reduction specified therein shall govern the reduction of such amounts and, if and to the extent not addressed therein, shall be reduced to in accordance with the Reduced Amountforegoing.

Excise Taxes. a. Anything in If Executive becomes entitled to payments under this Agreement Section 3 ("Severance Payments"), and if any of the Severance Payments will be subject to the contrary notwithstanding tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Executive shall receive at the time specified below an additional amount ("Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Severance Payments and except as set forth belowany federal, if it is determined that state and local income tax and Excise Tax upon the payment provided for by this Section 3(g), shall be equal to the Severance Payments. For purposes of determining whether any payment of the Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or distribution benefits received or to be received by the Company to Executive in connection with a Change in Control or for the benefit of Executive Executive's Termination (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwisewith any other plan, but determined without regard to arrangement or agreement with Reynolds, with any additional payments required under this person whose actions result in a Change in Xxxtrol, or with any person affiliated with Reynolds or such person) shall be treated as "parachute pxxxxxxx" within the meaning of Section 4280G(b)(2) (a of the Code, and all "Payment"excess parachute payments" within the meaning of Section 280G(b)(1) would shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel selected by Reynolds' independent auditors and acceptable to Executivx xxxx xther payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or any interest or penalties are incurred by Executive with respect otherwise not subject to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax", (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), then Executive and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be entitled to receive an additional payment (a "Gross-Up Payment") determined by Reynolds' independent auditors in an amount such that after payment by Executive accordance with the prixxxxxxx of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoSections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive retains an shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination, Executive shall repay to Reynolds at the time that the amount of such reduction in Xxxxxx Tax is finally determined the portion of the Gross-up Payment attributable to such reduction (plus the portion of the Gross-up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax reduction) plus interest received by Executive attributable to any excise tax refund. If the Excise Tax is determined to exceed the amount taken into account hereunder at the date of Termination (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment equal Payment), Reynolds shall make an additional gross-up payment in resxxxx xx such excess (plus any interest payable with respect to such excess) at the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such time that the receipt amount of Payments would not give rise to any Excise Tax then no such excess is finally determined. The Gross-Up Payment shall be made not later than the fifth business day following Termination; provided, however, that if the amount of such payment cannot be finally determined on or before such day, Reynolds shall pay Executive on such day an estimate as dxxxxxxxxd in good faith by Reynolds of the minimum amount of such payment and shall pay txx xxxxxnder of such payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after Termination. If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Reynolds to Executive and payable on the Payments, fifth business day after xxxxxx xy Reynolds (together with interest at the rate provided in Sectixx 1274(b)(2)(B) of the aggregate, shall be reduced to the Reduced AmountCode).

Excise Taxes. a. Anything in this Agreement If Executive becomes entitled to payments ("CIC Payments") from Reynolds or any Successor (as defined below) xxxx xxx subject to the contrary notwithstanding tax ("Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), Executive shall receive at the time specified below an additional amount ("Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the CIC Payments and except as set forth belowany federal, if it is determined that state and local income tax and Excise Tax upon the payment provided for by this Section 3(g), shall be equal to the CIC Payments (net of any payment required payroll withholding taxes on the CIC Payments themselves). For purposes of determining whether any payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any payments or distribution benefits received or to be received by the Company to Executive in connection with a Change in Control or for the benefit of Executive Executive's Termination (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseunder any other plan, but determined without regard to arrangement or agreement with Reynolds, with any additional payments required under this person whose actions result in a Xxxxxx in Control, or with any person affiliated with Reynolds or such person (all such personx xxxxx than Reynolds, "Successors")) shall be treated as "xxxxxhute payments" within the meaning of Section 4280G(b)(2) (a of the Code, and all "Payment"excess parachute payments" within the meaning of Section 280G(b)(1) would shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel selected by Reynolds' independent auditors and acceptable to Exxxxxxxx such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or any interest or penalties are incurred by Executive with respect otherwise not subject to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax", (ii) the amount of the payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), then Executive and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be entitled to receive an additional payment (a "Gross-Up Payment") determined by Reynolds' independent auditors in an amount such that after payment by Executive accordance xxxx xxe principles of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect theretoSections 280G(d)(3) and Excise Tax imposed upon (4) of the Code. For purposes of determining the amount of 11 the Gross-Up Payment, Executive retains an shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination, Executive shall repay to Reynolds at the time that the amount of such xxxxxxxon in Excise Tax is finally determined the portion of the Gross-Up Payment equal attributable to such reduction (plus the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by Executive if such repayment results in a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount"Excise Tax and/or a federal and state and local income tax reduction) such that the receipt of Payments would not give rise plus interest received by Executive attributable to any Excise Tax then no refund. If the Excise Tax is determined to exceed the amount taken into account hereunder at the Date of Termination (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Reynolds shall make an additional gross-up paymxxx xx xespect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined. The Gross-Up Payment shall be made not later than the fifth business day following the Date of Termination; provided however, that if the amount of such payment cannot be finally determined on or before such day, Reynolds shall pay Executive on such day an esxxxxxx xs determined in good faith by Reynolds of the minimum amount of such payment and xxxll pay the remainder of such payment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth day after the Date of Termination. If the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Reynolds to Executive and payable on the Paymentsfifth busxxxxx xxy after demand by Reynolds (together with interest at the rate xxxxxxxd in Section 1274(b)(2)(B) of the Code). Anything herein to the contrary notwithstanding, in the aggregate, any Gross-Up Payment otherwise due to Executive hereunder shall be reduced to by the Reduced Amountamount of any similar type of gross-up payments already received by Executive from Reynolds or any Successor outside this Agreemexx.

Excise Taxes. a. Anything in this Agreement If any of the payments or benefits received or to the contrary notwithstanding and except as set forth below, if it is determined that any payment or distribution be received by the Company to Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Company, any additional payments required under this Section 4Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (a such payments or benefits, being hereinafter referred to as the "PaymentTotal Payments") would will be subject to the any excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax on the Total Payments and any interest federal, state and penalties imposed with respect thereto) local income and employment taxes and Excise Tax imposed upon the Gross-Up payment, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the base amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive retains an shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment equal attributable to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined such reduction (plus that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination portion of the Gross-Up Payment and a reduction of attributable to the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall be made make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that the amount of such excess is finally determined. The Executive and the Payments, Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the aggregate, shall be reduced existence or amount of liability for Excise Tax with respect to the Reduced AmountTotal Payments.

Excise Taxes. a. Anything in this Agreement In the event that the Executive becomes entitled to the contrary notwithstanding payments and except as set forth below, if it is determined that benefits provided under this Section 11 and/or any payment other payments or distribution by benefits in connection with a Change in Control or termination of the Company to or for Executive's employment with the benefit of Executive Corporation (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseany other plan, but determined without regard to arrangement or agreement with the Corporation, any additional payments required under this Section 4person whose actions result in a Change in Control or any person affiliated with the Corporation or such person) (a collectively, the "PaymentPayments") would ), if any of the Payments will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect the Corporation shall pay the Executive, at least 30 days prior to such excise tax (such excise tax, together with the time payment of any such interest and penaltiesExcise Tax is due, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment amount (a the "Gross-Up Payment") in an amount such that the net amount retained by the Executive, after payment by Executive deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (Excise Tax and any interest federal and penalties state and local income tax imposed with respect thereto) and Excise Tax imposed upon on the Gross-Up Payment, shall be equal to the Excise Tax imposed on the Payments. For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) the Payments shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Corporation's independent auditors and acceptable to the Executive retains an the Payments (in whole or in part) do not constitute parachute payments or excess parachute payments or are otherwise not subject to the Excise Tax, (B) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (i) the total amount of the Payments or (ii) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (A) above), and (C) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Corporation's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date of termination of employment, would not receive a net after-tax benefit of at least $50,000 (taking the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account both income taxes and any Excise Tax) as compared hereunder at the time of termination of employment, the Executive shall repay to the net after-tax proceeds to Executive resulting from an elimination Corporation at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment and a attributable to such reduction (plus the portion of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced attributable to the Reduced AmountExcise Tax). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Corporation shall make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. The Executive shall notify the Corporation of any audit or review by the Internal Revenue Service of the Executive's federal income tax return for the year in which a payment under this Agreement is made within ten (10) days of the Executive's receipt of notification of such audit or review. In addition, the Executive shall also notify the Corporation of the final resolution of such audit or review within ten (10) days of such resolution.

Excise Taxes. a. Anything In the event that the benefits provided for in this Agreement to constitute “parachute payments” within the contrary notwithstanding meaning of Section 280G of the Code and except as set forth below, if it is determined that any payment or distribution by the Company to or for the benefit of Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4) (a "Payment") would will be subject to the excise tax imposed by Section 4999 of the CodeCode (the “Excise Tax”), then Executive’s severance benefits payable under the terms of this Agreement will be either (i) delivered in full, or any interest or penalties are incurred by Executive with respect (ii) delivered as to such excise tax (lesser extent which would result in no portion of such excise tax, together with any such interest and penalties, are hereinafter collectively referred severance benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments applicable federal, state and local income taxes and the Gross-Up PaymentExcise Tax, would not receive a net results in the receipt by Executive on an after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination basis, of the Gross-Up Payment and a reduction greatest amount of severance benefits, notwithstanding that all or some portion of such severance benefits may be taxable under Section 4999 of the paymentsCode. Unless the Company and Executive otherwise agree in writing, any determination required under this Section 13(h) will be made in writing by the aggregate, to an amount Company’s independent public accountants (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall “Accountants”), whose determination will be made to conclusive and binding upon Executive and the PaymentsCompany for all purposes. For purposes of making the calculations required by this Section 13(h), the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code. The Company and Executive will furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section 13(h). The Company will bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section 13(h). Any reduction in payments and/or benefits required by this Section 13(h) shall occur in the aggregatefollowing order: (1) reduction of cash payments; (2) reduction of vesting acceleration of equity awards; and (3) reduction of other benefits paid or provided to Executive. In the event that acceleration of vesting of equity awards is to be reduced, such acceleration of vesting shall be cancelled in the reverse order of the date of grant for the Executive’s equity awards. If two or more equity awards are granted on the same day, the equity awards will be reduced to the Reduced Amounton a pro-rata basis.

Excise Taxes. a. Anything in this Agreement to (i) In the contrary notwithstanding and except as set forth below, if it is determined event that any payment or distribution by the Company to or for the benefit of Executive (whether paid or amounts payable or distributed or distributable pursuant to the terms of under this Agreement or otherwise, otherwise to the Employee would (1) constitute “parachute payments” within the meaning of Section 280G of the Code or any comparable successor provision and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 25(b), be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest comparable successor provision (the “Excise Tax”), then such amounts payable to the Employee shall be either (y) provided to the Employee in full or penalties are incurred by Executive with respect (z) provided to the Employee to the maximum extent that would result in no portion of such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred benefits being subject to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount whichever of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a"amounts, if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after when taking into account applicable federal, state, local, and foreign income and employment taxes, the Payments Excise Tax, and any other applicable taxes, results in the Gross-Up PaymentEmployee’s receipt, would not receive a net on an after-tax benefit basis, of at least $50,000 (taking into account both income taxes and any the greatest amount of benefits, notwithstanding that all or some portion of such benefits may be taxable under the Excise Tax. Unless the Company and the Employee otherwise agree in writing, any determination required under this Section 25(b) as compared to shall be made in writing in good faith by the net after-tax proceeds to Executive resulting from an elimination Company’s independent accounting firm (the “Independent Accountants”). In the event of a reduction in benefits hereunder, the Gross-Up Payment and a reduction of the paymentstotal payments shall apply as follows, unless otherwise agreed in writing and such agreement is in compliance with Section 409A of the aggregateCode: (1) any cash severance payments subject to Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (2) any cash severance payments not subject to an amount Section 409A of the Code due under this Agreement shall be reduced, with the last such payment due first forfeited and reduced, and sequentially thereafter working from the next last payment; (3) any acceleration of vesting of any equity subject to Section 409A of the "Reduced Amount"Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest; and (4) any acceleration of vesting of any equity not subject to Section 409A of the Code shall remain as originally scheduled to vest, with the tranche that would vest last (without any such acceleration) first remaining as originally scheduled to vest. For purposes of making the calculations required by this Section 25(b), the Independent Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely on reasonable, good-faith interpretations concerning the application of the Code and other applicable legal authority. The Company and the Employee shall furnish to the Independent Accountants such information and documents as the Independent Accountants may reasonably request in order to make a determination under this Section 25(b). The Company shall bear all costs that the receipt of Payments would not give rise to Independent Accountants may reasonably incur in connection with any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountcalculations contemplated by this Section 25(b).

Excise Taxes. a. Anything in this Agreement to In the contrary notwithstanding and except as set forth below, if it is determined event that any payment payment, distribution or distribution benefit (including any acceleration of vesting of any benefit) received, deemed received or to be received by the Company to or for the benefit of the Executive in connection with his “separation from service” (as defined in Treasury Regulation §1.409A-1(h)) with the Corporation whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwiseotherwise (a “Payment”) would (1) constitute a parachute payment within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) or any similar or successor provision to Section 280G and (2) but determined without regard to any additional payments required under for this Section 4) (a "Payment") would 11(b), be subject to the excise tax imposed by Section 4999 of the Code, Code or any interest similar or penalties are incurred by Executive with respect successor provision to such excise tax Section 4999 (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with in respect to such taxesthereto, the “Excise Tax”), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the then such Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, in the aggregate, to an amount (the "Reduced Amount") such that the receipt of Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountlargest amount which would result in no portion of the Payments being subject to the Excise Tax. In the event any reduction of benefits is required pursuant to this Agreement, the Executive shall be allowed to choose which benefits hereunder (or under another agreement or plan, program or policy of the Corporation) are reduced (e.g., reduction first from continued health care benefits under Section 7(e), then from the cash payments under Section 7(d)(2)). Any determination as to whether a reduction is required under this Agreement and as to the amount of the reduction shall be made in writing by a nationally recognized public accounting firm (other than the firm serving as the accountant or auditor for the individual, entity or group effecting the Change of Control) that is appointed for this purpose by the Corporation (the “Accounting Firm”) prior to, or immediately following, the Effective Date, whose determination shall be conclusive and binding upon the Corporation and the Executive for all purposes. If the Internal Revenue Service (the “IRS”) determines that the Payments are subject to the Excise Tax, then the Corporation or an affiliate, as its exclusive remedy, shall seek to enforce the provisions of Section 11(c) hereof. Such enforcement of Section 11(c) below shall be the only remedy, under any and all applicable state and federal laws or otherwise, for the Executive’s failure to reduce the Payments so that no portion thereof is subject to the Excise Tax. The Corporation or an affiliate shall reduce the Payments in accordance with this Section 11(b) only upon written notice by the Accounting Firm indicating the amount of such reduction, if any (which will include detailed supporting calculations). The Corporation shall bear all fees, costs and expenses the Accounting Firm may incur in connection with any calculations contemplated by this Agreement.

Excise Taxes. a. Anything Notwithstanding anything in this Agreement the foregoing to the contrary notwithstanding and except as set forth belowcontrary, if it Independent Tax Counsel (as that term is determined defined below) determines that the aggregate payments and benefits provided or to be provided to the Executive pursuant to this Agreement, and any payment other payments and benefits provided or distribution by to be provided to the Executive from the Company to or for affiliates or any successors thereto constitute "parachute payments" as defined in Section 280G of the benefit of Executive Code (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 4successor provision thereto) (a "PaymentParachute Payments") that would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties are incurred by Executive with respect to such excise tax Code (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then Executive shall be entitled to receive an additional payment (a "Gross-Up Payment") in an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes)then, including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this paragraph "a", if it is determined that Executive is entitled to a Gross-Up Payment, but that Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of at least $50,000 (taking into account both income taxes and any Excise Tax) except as compared to the net after-tax proceeds to Executive resulting from an elimination of the Gross-Up Payment and a reduction of the payments, otherwise provided in the aggregatenext sentence, to an amount (the "Reduced Amount") such that the receipt of Parachute Payments would not give rise to any Excise Tax then no Gross-Up Payment shall be made to Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amountextent the Independent Tax Counsel shall determine is necessary (but not below zero) so that no portion thereof shall be subject to the Excise Tax. If Independent Tax Counsel determines that the Executive would receive in the aggregate greater payments and benefits on an after tax basis if the Parachute Payments were not reduced pursuant to this Section 3(f)(iv), then no such reduction shall be made. The determination of which payments or benefits shall be reduced to avoid the Excise Tax shall be made by the Independent Tax Counsel, provided that the Independent Tax Counsel shall reduce or eliminate, as the case may be, payments or benefits in the order that it determines will produce the required reduction in total Parachute Payments with the least reduction in the after-tax economic value to the Executive of such payments. If the after-tax economic value of any payments are equivalent, such payments shall be reduced in the inverse order of when the payments would have been made to the Executive until the reduction specified herein is achieved. The determination of the Independent Tax Counsel under this Section 3(f)(iv) shall be final and binding on all parties hereto. For purposes of this Section 3(f)(iv), "Independent Tax Counsel" shall mean a lawyer, a certified public accountant with a nationally recognized accounting firm, or a compensation consultant with a nationally recognized actuarial and benefits consulting firm with expertise in the area of executive compensation tax law, who shall be selected by the Company and shall be acceptable to the Executive (the Executive's acceptance not to be unreasonably withheld), and whose fees and disbursements shall be paid by the Company. Notwithstanding anything herein to the contrary, this Section 3(f)(iv) shall be interpreted (and, if determined by the Company to be necessary, reformed) to the extent necessary to fully comply with Section 409A of the Code; provided that the Company agrees to maintain, to the maximum extent practicable, the original intent and economic benefit to the Executive of the applicable provision without violating the provisions of Section 409A of the Code.