Common use of Excise Taxes Clause in Contracts

Excise Taxes. (i) If any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 reasonably acceptable to 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, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If 5.1 In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether Employee pursuant to the terms of this Agreement (the "Contract Payments") or in connection with Employee's termination of employment or contingent upon a change in control of the Company pursuant to any other plan, plan or arrangement or other agreement with the Employer or the Company are deemed by (or any affiliate) ("Other Payments" and, together with the Auditor (as defined belowContract Payments, the "Payments"), would be subject to the Company’s excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under "Excise Tax"), imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company Employer shall pay to Executive Employee, at the time specified in Section 5.2 below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by ExecutiveEmployee, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 5.1, and any interest, penalties or additions to tax payable by Employee with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax Counsel in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive Employee shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to Employee in the state and locality of Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executivehighest marginal rates. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event it shall be determined that any payment or benefit provided under Section 2 of the this Agreement, together with any other payments or benefits received Executive is entitled to receive by reason of a Change in Control of the Company or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms a termination of this Agreement or any other plan, arrangement or agreement his employment with the Company are deemed by the Auditor (as defined below)collectively, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 19861986 ("Code") or any successor provision, as amended or any interest or penalties are incurred by Executive with respect to such excise tax (the “Code”) (all such payments excise tax, together with any such interest and benefitspenalties, excluding the Gross-Up Payment (which is defined below), being hereinafter collectively referred to as the “Total Payments”"Excise Tax"), the Company shall pay Executive, at least 30 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, federal and state and local income and employment taxes and Excise Tax upon imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i1) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company's independent auditors and acceptable to Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, parachute payments or are otherwise not subject to the Excise Tax, (2) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) (after applying clause (1) above), and (iii3) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 '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 6(d))termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect termination of employment, Executive shall repay to Executivethe Company at the time that the amount of such reduction in Excise Tax is finally determined, the Company shall cause portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability for Excise Tax with respect to which cannot be determined at the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date time of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(dPayment), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to Executive on such day an estimate, as determined in good faith by excess) at the Company, in accordance with Section 6(c), of time that the minimum amount of such payments to excess is finally determined. Executive shall notify the Company of any audit or review by the Internal Revenue Service of Executive's federal income tax return for the year in which Executive a payment under this Agreement is clearly entitled and shall pay the remainder made within ten (10) days of Executive's receipt of notification of such payments (together with interest on audit or review. In addition, Executive shall also notify the unpaid remainder) at 120% Company of the rate provided in Section 1274(b)(2)(Bfinal resolution of such audit or review within ten (10) days of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement)resolution.

Excise Taxes. (i) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpayment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 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 is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on 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 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event it shall be determined that any of the payment or benefit provided under this Agreement, together with any other payments or benefits received Executive is entitled to receive by reason of a Change in Control of the Company or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms a termination of this Agreement or any other plan, arrangement or agreement his employment with the Company are deemed by the Auditor (as defined below)collectively, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 19861986 ("Code") or any successor provision, as amended or any interest or penalties are incurred by Executive with respect to such excise tax (the “Code”) (all such payments excise tax, together with any such interest and benefitspenalties, excluding the Gross-Up Payment (which is defined below), being hereinafter collectively referred to as the “Total Payments”"Excise Tax"), the Company shall pay Executive, at least 10 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i1) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company and acceptable to Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, parachute payments or are otherwise not subject to the Excise Tax, (2) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) (after applying clause (1) above), and (iii3) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 's residence on the Date 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 6(d))payment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect termination of employment, Executive shall repay to Executivethe Company at the time that the amount of such reduction in Excise Tax is finally determined, the Company shall cause portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability 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 and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. Executive shall notify the Company of any audit by the Internal Revenue Service of Executive's federal income tax return for Excise Tax the year in which a payment under this Agreement is made within ten (10) days of Executive's receipt of notification of such audit. In addition, Executive shall also notify the Company of the final resolution of such audit within ten (10) days of such resolution." 8. The first sentence of renumbered Section 12.(a) shall be amended to read as follows: "This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without reference to principles of conflict of laws." 9. All other terms of the Employment Agreement shall remain in full force and effect. 10. This instrument, together with the Employment Agreement, contains the entire agreement of the parties with respect to the Total Paymentssubject matter hereof. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If Notwithstanding any other provisions of this Agreement, in the payments event that any payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms Employee in connection with the Change of Control or the termination of the Employee’s employment under this Agreement or any other plan, arrangement or agreement with between the Company are deemed by and the Auditor (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) Employee (all such payments and benefits, excluding including the Gross-Up Payment (which is defined below)payments and benefits under Section 3.3 hereof, being hereinafter referred to as the called “Total Payments”) would be subject (in whole or in part), to an excise tax imposed by Section 4999 of the Company shall pay to Executive an additional amount Code (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on ), then the cash payments under Section 3.3 hereof shall first be reduced, and the noncash payments and benefits under the other sections hereof shall thereafter be reduced, to the extent necessary so that no portion of the Total Payments is subject to the Excise Tax but only if the net amount of such Total Payments, as so reduced (and any after subtracting the net amount of federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymenton such reduced Total Payments), shall be is greater than or equal to the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of Excise Tax to which the Employee would be subject in respect of such unreduced Total Payments); provided, however, that the Employee may elect to have the noncash payments and benefits hereof reduced (or eliminated) prior to any reduction of the cash payments under Section 3.3 hereof. (iib) For purposes of determining whether any of and the extent to which the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all no portion of the Total Payments the receipt or enjoyment of which the Employee shall have waived at such time and in such manner as not to constitute a “payment” within the meaning of Section 280G(b) of the Code shall be taken into account, (ii) no portion of the Total Payments shall be treated as taken into account which, in the opinion of tax counsel (“Tax Counsel”) reasonably acceptable to the Employee and selected by the accounting firm (the “Auditor”) which was, immediately prior to a Change of Control or other event giving rise to a potential Excise Tax, the Company’s independent auditor, does not constitute a “parachute paymentspayment” (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor Code (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) and, (ii) all “excess parachute payments” within in calculating the meaning Excise Tax, no portion of Section 280G(b)(l) of the Code such Total Payments shall be treated as subject to the Excise Tax unlesstaken into account which, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent constitutes reasonable compensation for services actually rendered (rendered, within the meaning of Section 280G(b)(4)(B) of the Code) , in excess of the base amount “Base Amount” (within the meaning set forth in Section 280G(b)(3) of the Code) allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of any noncash benefits non-cash benefit or any deferred payment or benefit included in the Total Payments 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, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iiic) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company Post-Transaction Corporation shall provide Executive the Employee with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company Post-Transaction Corporation has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement). (d) The Company shall be responsible for all charges of the Tax Counsel and the Auditor.

Excise Taxes. (i) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement (the "Contract Payments") or in connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any other plan, plan or arrangement or other agreement with the Company are deemed by (or any affiliate) ("Other Payments" and, together with the Auditor (as defined below)Contract Payments, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”the "Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive Executive, at the time specified in Section 5(ii) below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 5(i), and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax 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, Executive shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s 's residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Gross- Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the highest marginal rates. (ii) The Gross-Up Payments provided for in Section 5(i) hereof shall be made upon the earlier of (i) the payment to Executive of any Contract Payment to be calculated within 30 days or Other Payment or (ii) the imposition upon Executive or payment by Executive of a written request to that effect from Executiveany Excise Tax. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: 1) give the Company any information reasonably requested by the Company relating to such claim; 2) take such action in connection with contesting such claim as the Company shall each reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; 3) cooperate with the Company in good faith in order to effectively contest such claim; and 4) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax or other tax (including interest and penalties with respect to the Total Paymentsthereto) imposed as a result of such representation and payment of costs and expenses. (iv) The payments provided Company shall control all proceedings taken in this Section 6(d) connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), determine; provided, however, that if the amounts of Company directs the Executive to pay such payments cannot be finally determined on or before such dayclaim and xxx for a refund, the Company shall pay to Executive on such day an estimate, as determined in good faith by advance the Company, in accordance with Section 6(c), of the minimum amount of such payments payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive (including any other tax position of the Executive unrelated to the matters covered hereby). (v) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is clearly possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of the Executive. (vi) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, the Executive becomes entitled and to receive any refund with respect to such claim, the Executive shall promptly pay to the remainder Company the amount of such payments refund (together with any interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day paid or credited thereon after taxes applicable thereto). If, after the occurrence receipt by the Executive of a Date of Termination. At the time that payments are made under this Agreement, an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall provide Executive not be entitled to any refund with a written statement setting forth the manner in which respect to such payments were calculated claim and the basis for such calculations including, without limitation, any opinions or other advice Company does not notify the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be attached forgiven and shall not be required to the statement)be repaid.

Excise Taxes. The following provisions shall apply to any excise tax imposed under Section 4999 of the Code (ior its successor) (the "Excise Tax"): (a) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a change in control of the Company or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a change in control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”")) will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 6, shall be equal to the Total Payments. Such payment shall be made in the manner described in Section 5(d)(vi) hereof. (iib) For purposes of In 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 any Total Payments shall be treated as “"parachute payments” " (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”)Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) and all “"excess parachute payments” " (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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 (iiiii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 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 and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on the Date of Termination (or if there such other time as is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6(d)hereinafter described), net of the maximum reduction in federal income or employment taxes which could be obtained from deduction of such state and local taxes. . (c) If there has not been a Date the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to termination of the Executive's employment (or such other time as is hereinafter described), the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the Excise Tax exceeds the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If any of the payments or benefits received or to be ------------ received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpayment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 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 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 '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 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If Notwithstanding any other provision of this Agreement, in the payments event that Executive becomes entitled to receive or receives any payments, options, awards or benefits received or to be received by Executive pursuant to Section 6(c(including, without limitation, the monetary value of any non-cash benefits and the accelerated vesting of stock options) above, whether pursuant to the terms of under this Agreement or under any other plan, agreement or arrangement or agreement with the Company are deemed by the Auditor (as defined below)Digimarc, the Company’s tax counsel (“Tax Counsel”any person whose actions result in any change described in Code Section 280G(b)(2)(A)(i) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all any person affiliated with Digimarc or such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties person (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 reasonably acceptable to 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 that may separately or in part) do not the aggregate 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)(l280G 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 of the Code shall Payments will be treated as subject to any excise tax pursuant to Code Section 4999 or any similar or successor provision (the “Excise Tax unlessTax”), in then the opinion Company shall pay to Executive either (i) the full amount of Tax Counselthe Payments or (ii) an amount equal to the Payments, such reduced by the minimum amount necessary to prevent any portion of the Payments from being an “excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered payment” (within the meaning of Section 280G(b)(4)(B280G) (the “Capped Payments”), whichever of the Code) foregoing amounts results in excess the receipt by Executive, on an after-tax basis, of the base greatest amount allocable to such reasonable compensation, of Payments notwithstanding that all or are otherwise not some portion of the Payments may be 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 after-tax value of the Gross-Up PaymentPayments, (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 deemed to pay federal income tax taxes at the highest marginal rate of federal income taxation in tax and the calendar year in which the Gross-Up Payment is to be made and highest rate or rates of state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on domicile for income tax purposes for the Date of Termination (or if there is no Date of Termination, then the date on taxable year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))Payments will be made, net of provided that the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxesincome tax rate shall be determined assuming that such taxes are fully deductible for federal income tax purposes, and provided further that any phase-out of itemized deductions or other items shall be ignored. (b) All calculations and determinations under this Section 7, including application and interpretation of the Code and related regulatory, administrative and judicial authorities, shall be made by the Tax Advisor. If there has not been a Date of Termination All determinations made by the Tax Advisor under this Section 7 shall be conclusive and binding on both Digimarc and Executive, and Digimarc shall cause the Tax Advisor to provide its determinations and any supporting calculations with respect to Executive to Digimarc and Executive. Digimarc shall bear all fees and expenses charged by the Tax Advisor in connection with its services. For purposes of making the calculations and determinations under this Section 7, after taking into account the information provided by Digimarc and Executive, the Company Tax Advisor may make reasonable, good faith assumptions and approximations concerning the application of Code Sections 280G and 4999. Digimarc and Executive shall cause furnish the Gross-Up Payment to be calculated within 30 days of a written Tax Advisor with such information and documents as the Tax Advisor may reasonably request to that effect from Executiveassist the Tax Advisor in making calculations and determinations under this Section 7. (iiic) Executive In the event that Section 7(a) above applies and a reduction is required to be applied to the Payments thereunder, the Payments shall be reduced by the Company shall each reasonably cooperate in its reasonable discretion in the following order: (i) reduction of any Payments that are subject to Code Section 409A on a pro-rata basis or such other manner that complies with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Code Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate409A, as determined in good faith by the Company, in accordance with and (ii) reduction of any Payments that are exempt from Code Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).409A.

Excise Taxes. (i) If any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) aboveExecutive, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service Services to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to 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 section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 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 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 sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of 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 6(d6(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d6(c) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d6(c)), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c6(b), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 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 is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on 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 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) aboveExecutive, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below), the Company’s 's tax counsel (“"Tax Counsel”") or the Internal Revenue Service Services to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “"Code”") (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”"), the Company shall pay to Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “"Excise Tax”") Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s 's independent auditor (the “"Auditor”"), ------- such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s '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 6(d6(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d6(c) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d6(c), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c6(b), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpayment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 280G(b)(lsection 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 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 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 is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on 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 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If In the event that any of the payments payment or benefits benefit received or to be received by the Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement (the "Contract Payments") or 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 other plan, plan or arrangement or other agreement with the Company are deemed by (or any affiliate thereof) ("Other Payments" and, together with the Auditor (as defined below)Contract Payments, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”the "Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive Executive, at the time specified in Section 12(c)(ii) below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 12(c)(i), and any interest, penalties or additions to tax payable by the Executive with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax 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, the Executive shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to individuals as are in effect in the state and locality of the Executive’s 's residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the highest marginal rates. (ii) The Gross-Up Payments provided for in Section 12(c)(i) hereof shall be made upon the earlier of (x) the payment to the Executive of any Contract Payment to be calculated within 30 days or Other Payment or (y) the imposition upon the Executive or payment by the Executive of a written request to that effect from Executiveany Excise Tax. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: 1) give the Company any information reasonably requested by the Company relating to such claim; 2) take such action in connection with contesting such claim as the Company shall each reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; 3) cooperate with the Company in good faith in order to effectively contest such claim; and 4) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax or other tax (including interest and penalties with respect to the Total Paymentsthereto) imposed as a result of such representation and payment of costs and expenses. (iv) The payments provided Company shall control all proceedings taken in this Section 6(d) connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue fox x refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), determine; provided, however, that if the amounts of Company directs the Executive to pay such payments cannot be finally determined on or before such dayclaim and sue fox x refund, the Company shall pay advance the amount of such payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such day an estimateadvance or with respect to any imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as determined the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive (including any other tax position of the Executive unrelated to the matters covered hereby). (v) As a result of the uncertainty in good faith the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is possible that Gross-Up Payments, which will not have been made by the Company, in accordance with Section 6(cshould have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the minimum Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of the Executive. (vi) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall promptly pay to the Company the amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments refund (together with any interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day paid or credited thereon after taxes applicable thereto). If, after the occurrence receipt by the Executive of a Date of Termination. At the time that payments are made under this Agreement, an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall provide Executive not be entitled to any refund with a written statement setting forth the manner in which respect to such payments were calculated claim and the basis for such calculations including, without limitation, any opinions or other advice Company does not notify the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be attached forgiven and shall not be required to the statement)be repaid.

Excise Taxes. If Executive becomes entitled to payments under this Section 3 (i) If "Severance Payments"), and if any of the payments or benefits received or to Severance Payments will be received by Executive pursuant to Section 6(c) above, whether pursuant subject to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed tax ("Excise Tax") imposed by the Auditor (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below"), being hereinafter referred to as Executive shall receive at the “Total Payments”), the Company shall pay to Executive time specified below an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Severance Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 3(g), shall be equal to the Total Severance Payments. (ii) . For purposes of determining whether any of the Total Severance Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all any other payments or benefits received or to be received by Executive in connection with a Change in Control or Executive's Termination (whether pursuant to the terms of the Total Payments this Agreement or with any other plan, arrangement or agreement with Reynolds, with any person whose actions result in a Change in Xxxtrol, or with any person affiliated with Reynolds or such person) shall be treated as “"parachute payments” (pxxxxxxx" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) unlessshall be treated as subject to the Excise Tax, unless in the opinion of Tax Counsel reasonably tax counsel selected by Reynolds' independent auditors and acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”), such Executivx xxxx xther 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, 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)(B280G(b)(4) of the Code) Code in excess of the base amount allocable to such reasonable compensationwithin the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Severance Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Severance Payments or (B) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i) above), and (iii) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Reynolds' independent auditors in accordance with the principles prixxxxxxx of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 's residence on the Date of Termination (or if there is no Date date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect Termination, Executive shall repay to Executive, Reynolds at the Company shall cause 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 be calculated within 30 days any excise tax refund. If the Excise Tax is determined to exceed the amount taken into account hereunder at the date of a written request to that effect from Executive. Termination (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability for Excise Tax which cannot be determined at the time of the Gross-Up 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 Total Payments. (iv) time that the amount of such excess is finally determined. The payments provided in this Section 6(d) Gross-Up Payment shall be made not later than the fifth business day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), ; provided, however, that if the amounts amount of such payments payment cannot be finally determined on or before such day, the Company Reynolds shall pay to Executive on such day an estimate, estimate as determined dxxxxxxxxd in good faith by the Company, in accordance with Section 6(c), Reynolds of the minimum amount of such payments to which Executive is clearly entitled payment and shall pay the remainder txx xxxxxnder of such payments payment (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At If the time that amount of the estimated payments are made under this Agreementexceeds the amount subsequently determined to have been due, such excess shall constitute a loan by Reynolds to Executive payable on the Company shall provide Executive fifth business day after xxxxxx xy Reynolds (together with a written statement setting forth interest at the manner rate provided in which such payments were calculated and Sectixx 1274(b)(2)(B) of the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statementCode).

Excise Taxes. (i) If any of the payments or benefits received or to be ------------ received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpayment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 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 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 '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 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross- Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event that the Executive becomes entitled to the payments and benefits provided under Section 5 of this Agreement (the "Severance Payments") and/or any of the other payments or benefits received in connection with a Change in Control or to be received by Executive pursuant to Section 6(c) above, termination of the Executive's employment with the Company (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company are deemed by or such person) (collectively, the Auditor (as defined below"Total Payments"), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) and if any of the Internal Revenue Code of 1986, as amended Total Payments will be subject to the tax (the “"Excise Tax") imposed by Section 4999 of the Code”, the Severance Payments shall be reduced (subject to the 20% limitation described below) (all such payments and benefitsuntil no portion of the Total Payments are not deductible as a result of Section 280G of the Code. Notwithstanding the preceding sentence, excluding the Gross-Up Payment (parties agree that in the event the Severance Payments would be required to be reduced by more than 20% in order to avoid the deduction limitations of Section 280G of the Code, no portion of the Severance Payments will be reduced, in which is defined below), being hereinafter referred to as the “Total Payments”), case the Company shall pay the Executive, at least 30 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, federal and state and local income and employment taxes and Excise Tax upon tax imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (iA) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company's independent auditors and acceptable to the Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, 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)(l) (after applying clause (A) above), and (iiiC) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 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 taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to Executivetermination of employment, the Executive shall repay to the Company shall cause at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at tie time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability for Excise Tax with respect to which cannot be determined at the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date time of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(dPayment), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay make an additional Gross-Up Payment in respect of such excess (plus any interest and penalties payable with respect to Executive on such day an estimate, as determined in good faith by excess) at the Company, in accordance with Section 6(c), of time that the minimum amount of such payments to excess is finally determined. The Executive shall notify the Company of any audit or review by the Internal Revenue Service of the Executive's federal income tax return for the year in which Executive a payment under this Agreement is clearly entitled and shall pay made within ten (10) days of the remainder Executive's receipt of notification of such payments (together with interest on audit or review. In addition, the unpaid remainder) at 120% Executive shall also notify the Company of the rate provided in Section 1274(b)(2)(Bfinal resolution of such audit or review within ten (10) days of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement)resolution.

Excise Taxes. (i) If Notwithstanding any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms other provision of this Agreement to the contrary, if any payment or any other plan, arrangement or agreement with benefit the Executive would receive from the Company are deemed or Parent, under this Agreement or otherwise (including, without limitation, any payment, benefit, entitlement or distribution paid or provided by the Auditor person or entity effecting the change in control) in connection with a change of control (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount ) (the a) constitute “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 reasonably acceptable to 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)(l280G of the Code, and (b) but for this Section 11, would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive will be entitled to receive either (i) the full amount of the 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 Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of 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 (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 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 Executive, such reduction shall occur in the following order: (i) any cash severance payable by reference to 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 Code shall be treated as subject to such payment or benefit results in such payment or benefit not constituting a parachute payment under Section 280G(b)(2). For the Excise Tax unlessavoidance of doubt, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within event additional Total Payments are made to the meaning of Section 280G(b)(4)(B) Executive after the application of the Code) cutback in excess of this Section 11, which additional Total Payments result in the base cutback no longer being applicable, the Company shall pay the Executive an additional amount allocable equal to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of the Total Payments which were originally cutback. The Company shall determine at the end of each calendar year whether any noncash benefits or any deferred payment or benefit such restoration is necessary based on additional Total Payments (if any) made during such calendar year, and shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3pay such restoration within seventy five (75) and (4) days of the Codelast day of such calendar year. For purposes of determining the amount order of reduction of amounts payable under the Gross-Up PaymentPolicy, Executive the order of reduction specified therein shall govern the reduction of such amounts and, if and to the extent not addressed therein, 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 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, reduced in accordance with the foregoing.” 17. Section 6(c), 13 of the minimum amount of such payments to which Executive Employment Agreement is clearly entitled hereby amended as follows: (a) the phrase “, Parent or Holdings” is hereby deleted and shall pay replaced with the remainder of such payments phrase “or Parent” in the second and third lines thereof; and (together b) the phrase “, Parent and Holdings” is hereby deleted and replaced with interest on the unpaid remainder) at 120% phrase “and Parent” in the fifth line thereof. 18. Section 19 of the rate provided in Employment Agreement is hereby amended by deleting the last sentence thereof. 19. Section 1274(b)(2)(B) 21 of the Code) Employment Agreement is hereby amended and restated in its entirety as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).follows:

Excise Taxes. (ia) If In the event it shall be determined that any of the payment or benefit provided under this Agreement, together with any other payments or benefits received Executive is entitled to receive by reason of a Change in Control of the Company or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms a termination of this Agreement or any other plan, arrangement or agreement his employment with the Company are deemed by the Auditor (as defined below)collectively, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 19861986 ("Code") or any successor provision, as amended or any interest or penalties are incurred by Executive with respect to such excise tax (the “Code”) (all such payments excise tax, together with any such interest and benefitspenalties, excluding the Gross-Up Payment (which is defined below), being hereinafter collectively referred to as the “Total Payments”"Excise Tax"), the Company shall pay Executive, at least 10 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i1) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company and acceptable to Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, parachute payments or are otherwise not subject to the Excise Tax, (2) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) (after applying clause (1) above), and (iii3) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 's residence on the Date 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 6(d))payment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect termination of employment, Executive shall repay to Executivethe Company at the time that the amount of such reduction in Excise Tax is finally determined, the Company shall cause portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability for Excise Tax with respect to which cannot be determined at the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date time of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(dPayment), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay 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. Executive on such day an estimate, as determined in good faith shall notify the Company of any audit by the CompanyInternal Revenue Service of Executive's federal income tax return for the year in which a payment under this Agreement is made within ten (10) days of Executive's receipt of notification of such audit. In addition, Executive shall also notify the Company of the final resolution of such audit within ten (10) days of such resolution." 7. An additional sentence to renumbered Section 10.(a) shall be added to read as follows: "This Agreement shall be governed by and construed in accordance with Section 6(c), the laws of the minimum amount State of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations includingMichigan, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing reference to principles of conflict of laws." 8. The Agreement shall be attached amended to the statement).insert a new Section 11. to read in its entirety as follows:

Excise Taxes. (i) If Notwithstanding any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms other provision of this Agreement to the contrary, if any payment or any other plan, arrangement or agreement with benefit the Executive would receive from the Company are deemed or under this Agreement or otherwise (including, without limitation, any payment, benefit, entitlement or distribution paid or provided by the Auditor person or entity effecting the change in control) in connection with a change of control (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount ) (the a) constitute “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 reasonably acceptable to 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)(l280G of the Code, and (b) but for this Section 11, would be subject to the excise tax imposed by Section 4999 of the Code, then the Executive will be entitled to receive either (i) the full amount of the 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 Executive’s “base amount” (as such term is defined in Section 280G(b)(3)(A) of the Code), whichever of clauses (i) and (ii), after taking into account applicable federal, state, and local income and employment taxes and the excise tax imposed by Section 4999 of the Code, results in the receipt by the Executive, on an after-tax basis, of 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 (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 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 Executive, such reduction shall occur in the following order: (i) any cash severance payable by reference to the Executive’s base salary or annual bonus, (ii) any other cash amount payable to the 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 Code shall be treated as subject to such payment or benefit results in such payment or benefit not constituting a parachute payment under Section 280G(b)(2). For the Excise Tax unlessavoidance of doubt, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered (within event additional Total Payments are made to the meaning of Section 280G(b)(4)(B) Executive after the application of the Code) cutback in excess of this Section 11, which additional Total Payments result in the base cutback no longer being applicable, the Company shall pay the Executive an additional amount allocable equal to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (iii) the value of the Total Payments which were originally cutback. The Company shall determine at the end of each calendar year whether any noncash benefits or any deferred payment or benefit such restoration is necessary based on additional Total Payments (if any) made during such calendar year, and shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3pay such restoration within seventy five (75) and (4) days of the Codelast day of such calendar year. For purposes of determining the amount order of reduction of amounts payable under the Gross-Up PaymentPolicy, Executive the order of reduction specified therein shall govern the reduction of such amounts and, if and to the extent not addressed therein, 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 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, reduced in accordance with the foregoing.” 17. Section 6(c), 13 of the minimum amount of such payments to which Executive Employment Agreement is clearly entitled hereby amended as follows: (a) the phrase “Parent or Holdings” is hereby deleted and shall pay replaced with the remainder of such payments phrase “or Parent” in the third and fourth lines thereof; and (together b) the phrase “Parent and Holdings” is hereby deleted and replaced with interest on the unpaid remainder) at 120% phrase “and Parent” in the fifth line thereof. 18. Section 21 of the rate provided Employment Agreement is hereby amended and restated in Section 1274(b)(2)(B) of the Code) its entirety as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).follows:

Excise Taxes. The following provisions shall apply with respect to any excise tax imposed under Section 4999 of the Internal Revenue Code as amended (ithe "Code"), (the "Excise Tax"): (a) If Whether or not the Executive becomes entitled to any Change-in-Control Payment, if any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a Change-in-Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a Change-in-Control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”")) will be subject to Excise Tax, the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, the Executive after deduction payment of (a) any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and (b) any federal, state and local income and employment taxes and Excise Tax upon and income tax due in respect of the Gross-Up Payment, shall be equal to the Total Payments. Such payment shall be made in the manner described in Section 3 above. (iib) 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 any Total Payments shall be treated as “"parachute payments” " (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”)Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) and all “"excess parachute payments” " (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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 (iiiii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 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 and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the Executive’s '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 6(d)such other time as hereinafter described), net of the maximum reduction in federal income or employment taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to termination of the Executive's employment (or such other time as is hereinafter described), the Company Executive shall cause 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 interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (or such other time as is hereinafter described) (including by reason of any payment the existence or amount of which cannot be calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether 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 of any other plan, arrangement or agreement of the Company (or any affiliate) ("Other Payments" and, together with the Company are deemed by the Auditor (as defined below)Contract Payments, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”the "Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986, 1986 (as amended (from time to time, the “"Code”") (all such payments and benefits, excluding the Gross-Up Payment (which is defined as determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive you, at the time specified in Section 7(b) below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executiveyou, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income tax and employment taxes and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by you with respect thereto, shall be equal to the Total Payments. total present value (iiusing 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount of the Total Payments shall be treated as “"parachute payments” (" within the meaning of Section section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to 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 section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of Tax independent counsel selected by the Company and reasonably acceptable to you ("Independent Counsel"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(Bsection 280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) 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 the Auditor Independent Counsel in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive you shall be deemed to pay federal income tax taxes at the highest marginal rate rates of federal income taxation applicable to the individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s your residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executivehighest marginal rates. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. The following provisions shall apply to any excise tax imposed under Section 4999 of the Code (ior its successor) (the “Excise Tax”): (a) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a change in control of the Company or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a change in control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”)) will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 6, shall be equal to the Total Payments. Such payment shall be made in the manner described in Section 5(d)(vi) hereof. (iib) For purposes of In 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 any 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 reasonably acceptable to Executive and tax counsel selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (auditors and reasonably acceptable to the “Auditor”)Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) and all “excess parachute payments” (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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 (iiiii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Company’s independent auditors in accordance with the principles of Sections Section 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 and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment 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 such other time as is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6(d)hereinafter described), net of the maximum reduction in federal income or employment taxes which could be obtained from deduction of such state and local taxes. . (c) If there has not been a Date the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to termination of the Executive’s employment (or such other time as is hereinafter described), the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the Excise Tax exceeds the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. The following provisions shall apply with respect to any ------------ excise tax imposed under Section 4999 of the Code (ithe "Excise Tax"): (a) If Whether or not you become entitled to any of the payments described in Section 4(d), if any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) above, you in connection with a Change in Control or your termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a Change in Control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”")) will be subject to Excise Tax, the Company shall pay to Executive you an additional amount (the “"Gross- Up Payment") equal to the amount of the Excise Tax which applies to the Total Payments, but excluding any additional Excise Tax which may apply to the Gross-Up Payment”) such that the net amount retained by Executive, after deduction of Payment or any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on income or other taxes which may result from the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon or the Gross-Up Payment, . Such payment shall be equal to made in the Total Paymentsmanner described in Section 4(d) hereof. (iib) 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 any Total Payments shall be treated as “"parachute payments” " (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”)you, 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) and all “"excess parachute payments” " (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of 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 6(d)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).and

Excise Taxes. The following provisions shall apply to any excise tax imposed under Section 4999 of the Code (ior its successor) (the "Excise Tax"): (a) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a change in control of the Company or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a change in control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”")) will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 6, shall be equal to the Total Payments. Such payment shall be made in the manner described in Section 5(d)(vii) hereof. (iib) For purposes of In 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 any Total Payments shall be treated as “"parachute payments” " (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”)Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) and all “"excess parachute payments” " (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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 (iiiii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 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 and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on the Date of Termination (or if there such other time as is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6(d)hereinafter described), net of the maximum reduction in federal income or employment taxes which could be obtained from deduction of such state and local taxes. . (c) If there has not been a Date the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to termination of the Executive's employment (or such other time as is hereinafter described), the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the Excise Tax exceeds the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event it shall be determined that any of the payment or benefit provided under this Agreement, together with any other payments or benefits received Executive is entitled to receive by reason of a Change in Control of the Company or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms a termination of this Agreement or any other plan, arrangement or agreement his employment with the Company are deemed by the Auditor (as defined below)collectively, the Company’s tax counsel (“Tax CounselPayments”) or would be subject to the Internal Revenue Service to constitute an excess parachute payment under excise tax imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended 1986 (the “Code”) or any successor provision, or any interest or penalties are incurred by Executive with respect to such excise tax (all such payments excise tax, together with any such interest and benefitspenalties, excluding the Gross-Up Payment (which is defined below), being hereinafter collectively referred to as the “Total PaymentsExcise Tax”), the Company shall pay Executive, at least 10 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i1) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company and acceptable to Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, parachute payments or are otherwise not subject to the Excise Tax, (2) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) (after applying clause (1) above), and (iii3) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company’s independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 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 6(d))payment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect termination of employment, Executive shall repay to Executivethe Company at the time that the amount of such reduction in Excise Tax is finally determined, the Company shall cause portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability for Excise Tax 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 and penalties payable with respect to such excess) at the Total Paymentstime that the amount of such excess is finally determined. Executive shall notify the Company of any audit by the Internal Revenue Service of Executive’s federal income tax return for the year in which a payment under this Agreement is made within ten (10) days of Executive’s receipt of notification of such audit. In addition, Executive shall also notify the Company of the final resolution of such audit within ten (10) days of such resolution. (ivd) The payments provided in Any Gross-Up Payment required to be paid under this Section 6(d) 6 shall be made not paid no later than the fifth day end of the Executive’s taxable year next following the Date of Termination (or if there is no Date of Termination, then Executive’s taxable year in which the fifth day following date on Executive pays the Excise Tax to which the Gross-Up UP Payment is calculated for purposes of this Section 6(d), provided, however, that if relates to the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions United States Internal Revenue Service or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement)applicable taxing authority.

Excise Taxes. (i) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement (the "Contract Payments") or in connection with Executive's termination of employment or contingent upon a Change in Control of the Company pursuant to any other plan, plan or arrangement or other agreement with the Company are deemed by (or any affiliate) ("Other Payments" and, together with the Auditor (as defined below)Contract Payments, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”the "Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive Executive, at the time specified in Section 5(ii) below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 5(i), and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax 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, Executive shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s 's residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the highest marginal rates. (ii) The Gross-Up Payments provided for in Section 5(i) hereof shall be made upon the earlier of (i) the payment to Executive of any Contract Payment to be calculated within 30 days or Other Payment or (ii) the imposition upon Executive or payment by Executive of a written request to that effect from Executiveany Excise Tax. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the 30 day period following the date on which the Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: 1) give the Company any information reasonably requested by the Company relating to such claim; 2) take such action in connection with contesting such claim as the Company shall each reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to the Executive; 3) cooperate with the Company in good faith in order to effectively contest such claim; and 4) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax or other tax (including interest and penalties with respect to the Total Paymentsthereto) imposed as a result of such representation and payment of costs and expenses. (iv) The payments provided Company shall control all proceedings taken in this Section 6(d) connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the xxaim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), determine; provided, however, that if the amounts of Company directs the Executive to pay such payments cannot be finally determined on or before such dayclaim and sue for a refund, the Company shall pay to Executive on such day an estimate, as determined in good faith by sxxxl advance the Company, in accordance with Section 6(c), of the minimum amount of such payments payment to the Executive on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after- tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without the Executive's consent if such position or resolution could reasonably be expected to adversely affect the Executive (including any other tax position of the Executive unrelated to the matters covered hereby). (v) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is clearly possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and the Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of the Executive. (vi) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, the Executive becomes entitled and to receive any refund with respect to such claim, the Executive shall promptly pay to the remainder Company the amount of such payments refund (together with any interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day paid or credited thereon after taxes applicable thereto). If, after the occurrence receipt by the Executive of a Date of Termination. At the time that payments are made under this Agreement, an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall provide Executive not be entitled to any refund with a written statement setting forth the manner in which respect to such payments were calculated claim and the basis for such calculations including, without limitation, any opinions or other advice Company does not notify the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be attached forgiven and shall not be required to the statement)be repaid.

Excise Taxes. (i) If 5.1 In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether Employee pursuant to the terms of this Agreement (the "Contract Payments") or in connection with Employee's termination of employment or contingent upon a change in control of the Company pursuant to any other plan, plan or arrangement or other agreement with the Employer or the Company are deemed by (or any affiliate) ("Other Payments" and, together with the Auditor (as defined belowContract Payments, the "Payments"), would be subject to the Company’s excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under "Excise Tax"), imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company Employer shall pay to Executive Employee, at the time specified in Section 5.2 below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by ExecutiveEmployee, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 5.1, and any interest, penalties or additions to tax payable by Employee with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax Counsel in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive Employee shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to Employee in the state and locality of Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the highest marginal rates. 5.2 Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other Payments provided for in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) 5.1 hereof shall be made not upon the earlier of (i) the payment to Employee of any Contract Payment or Other Payment or (ii) the imposition upon Employee or payment by Employee of any Excise Tax. 5.3 The Employee shall notify the Employer in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Employer of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 20 business days after the fifth Employee is informed in writing of such claim and shall apprise the Employer of the nature of such claim and the date on which such claim is requested to be paid. The Employee shall not pay such claim prior to expiration of the 30 day period following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the GrossEmployee gives such notice to the Employer (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Employer notifies the Employee in writing prior to the expiration of such period that it desires to contest such claim the Employee shall: i) give the Employer any information reasonably requested by the Employer relating to such claim; ii) take such action in connection with contesting such claim as the Employer shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Employer and reasonably satisfactory to the Employee; iii) cooperate with the Employer in good faith in order to effectively contest such claim; and iv) permit the Employer to participate in any proceedings relating to such claim; provided, however, that the Employer shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest, and shall indemnify and hold the Employee harmless, on an after-Up Payment is calculated tax basis, for purposes any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of this Section 6(d)such representation and payment of costs and expenses. 5.4 The Employer shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Employee to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Employee agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Employer shall reasonably determine; provided, however, that if the amounts of Employer directs the Employee to pay such payments cannot be finally determined on or before such dayclaim and xxx for a refund, the Company Employer shall pay to Executive on such day an estimate, as determined in good faith by advance the Company, in accordance with Section 6(c), of the minimum amount of such payments payment to the Employee on a interest-free basis, and shall indemnify and hold the Employee harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided, further, that if the Employee is required to extend the statute of limitations to enable the Employer to contest such claim, the Employee may limit this extension solely to such contested amount. The Employer's control of the contest shall be limited to issues with respect to which Executive a Gross-Up Payment would be payable hereunder and the Employee shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Employer without the Employee's consent if such position or resolution could reasonably be expected to adversely affect the Employee (including any other tax position of the Employee unrelated to the matters covered hereby). 5.5 As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Employer or the Tax Counsel hereunder, it is clearly possible that Gross-Up Payments which will not have been made by the Employer should have been made ("Underpayment"), consistent with the calculations required to be made hereunder In the event that the Employer exhausts its remedies and the Employee thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Employer or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Employer to or for the benefit of the Employee. 5.6 If, after the receipt by Employee of the Gross-Up Payment or an amount advanced by the Employer in connection with the contest of an Excise Tax claim, the Employee becomes entitled and to receive any refund with respect to such claim, the Employee shall promptly pay to the remainder Employer the amount of such payments refund (together with any interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day paid or credited thereon after taxes applicable thereto). If, after the occurrence receipt by the Employee of an amount advanced by the Employer in connection with an Excise Tax claim, a Date of Termination. At the time determination is made that payments are made under this Agreement, the Company Employee shall provide Executive not be entitled to any refund with a written statement setting forth the manner in which respect to such payments were calculated claim and the basis for such calculations including, without limitation, any opinions or other advice Employer does not notify the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are Employee in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be attached forgiven and shall not be required to the statement)be repaid.

Excise Taxes. (a) (i) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement (the “Contract Payments”) or in connection with Executive’s termination of employment or contingent upon a change in control (as defined under Section 280G of the Code) of the Company pursuant to any other plan, plan or arrangement or other agreement with the Company are deemed by (or any affiliate) (“Other Payments” and, together with the Auditor (as defined below)Contract Payments, the Company’s tax counsel (“Tax CounselPayments”) or would be subject to the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended excise tax (the “CodeExcise Tax”) (all such payments and benefitsimposed by Section 4999 of the Code, excluding the Gross-Up Payment (which is defined as determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive Executive, at the time specified in Section 20(b) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise taxall amounts required to be paid upon the payment provided for by this Section 20(a), together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federalinterest, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpenalties or additions to tax payable by Executive with respect thereto, shall be equal to the Total total present value of the Excise Taxes imposed upon the Payments; provided, however, that if Executive’s Payment is, when calculated on a net-after-tax basis, less than 110% of the amount of the Payment which could be paid to Executive under Section 280G of the Code without causing the imposition of the Excise Tax, then the Payment shall be limited to the largest amount payable (as described above) without resulting in the imposition of any Excise Tax (such amount, the “Capped Amount”). (ii) For purposes of determining the Capped Amount, whether any of the Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (iA) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of independent tax counsel selected by the Company’s independent auditors and acceptable to Executive (“Tax Counsel”), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a “parachute payment” within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such “excess parachute payments” (in whole or in part) are otherwise not subject to the Excise Tax, (B) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments or (2) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying clause (A) hereof), and (iiiC) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax 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, Executive shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates. (iii) If the Tax Counsel determines that any Excise Tax is payable by Executive and that the criteria for reducing the Payments to the Capped Amount (as described in Section 20(a)(i) above) is met, then the Company shall reduce the Payments by the amount which, based on the Tax Counsel’s determination and calculations, would provide Executive with the Capped Amount, and pay to Executive such reduced Payments; provided that the Company shall first reduce the severance payment under Section 4(c) and shall next reduce the benefits provided under the Company’s incentive equity plan pursuant to which Executive has been awarded equity. If there has not been a Date of Termination with respect the Tax Counsel determines that an Excise Tax is payable, without reduction pursuant to ExecutiveSection 20(a)(i), above, the Company shall cause pay the required Gross-Up Payment to, or for the benefit of, in accordance with Section 20(b). If the Tax Counsel determines that no Excise Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his/her federal, state, local income or other tax return. Any determination by the Tax Counsel as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. (b) The Gross-Up Payments provided for in Section 20(a) hereof shall be made upon the earlier of (i) the payment to Executive of any Contract Payment or Other Payment or (ii) the imposition upon Executive or payment by Executive of any Excise Tax. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be calculated within paid. Executive shall not pay such claim prior to the expiration of the 30 days day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of a written taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to that effect from time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive.; (iii) Executive and the Company shall each reasonably cooperate with the other Company in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect good faith in order to the Total Payments.effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (d) The payments provided Company shall control all proceedings taken in this Section 6(d) connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), determine; provided, however, that if the amounts of Company directs Executive to pay such payments cannot be finally determined on or before such dayclaim and xxx for a refund, the Company shall pay advance the amount of such payment to Executive on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such day an estimateadvance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as determined in good faith the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Executive’s consent if such position or resolution could reasonably be expected to adversely affect Executive (including any other tax position of Executive unrelated to the matters covered hereby). (e) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of Executive. (f) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, Executive becomes entitled to receive any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be forgiven and shall not be required to be repaid. (g) Notwithstanding the foregoing provisions of this Section 20: (i) In no event shall the Company’s liability for Gross-Up Payments to Executive under this Section 20 exceed the amount of the “tax gross-up payment” on any Payment permitted under Treasury Regulation Section 1.409A-3(i)(1)(v); and (ii) In no event shall the Company’s liability for any Gross-Up Payments to Executive under this Section 20, taken together with any gross-up payments payable to Producers Sales Organization pursuant to the Consulting Agreement (the “Consulting Agreement”) with the Company and Xxxx Xxxx of even date herewith and any gross-up payments payable to Xxxx Xxxxxxxxx pursuant to his Employment Agreement (the “Xxxxxxxxx Employment Agreement”) with the Company of even date herewith (the “Aggregate Gross-Up Payments”), exceed $1,000,000 (the “Maximum Amount”) in the aggregate. In the event that the Aggregate Gross-Up Payments would exceed $1,000,000, Executive’s Gross-Up Payment under this Section 20 shall not exceed an amount equal to (A) the Maximum Amount, multiplied by (B) a fraction, the numerator of which is equal to the Gross-Up Payment that would be payable to Executive pursuant to this Section 20 (without regard to the application of this Section 20(g)(ii)), and the denominator of which is the aggregate Gross-Up Payments that would be payable to Executive pursuant to this Section 20 and Producers Sales Organization pursuant to the Consulting Agreement and Xxxx Xxxxxxxxx pursuant to the Xxxxxxxxx Employment Agreement (without regard to the application of this Section 20(g)(ii) or any comparable provision in such other Agreements). (h) The Gross-Up Payment shall be paid in accordance with Treasury Regulation Section 1.409A-3(i)(1)(v). Interest and penalties with respect to any Gross-Up Payment or that are otherwise incurred by the Company on Executive’s behalf or required to be paid by the Company under this Section 20 shall be paid to Executive or on Executive’s behalf only to the extent permitted under Treasury Regulation Section 1.409A-3(i)(1)(v). Notwithstanding the other provisions of this Section 20, all Gross-Up Payments shall be made to the Executive not later than the end of the calendar year following the year in which the Executive remits the related taxes, in accordance with Treasury Regulation Section 6(c1.409A-3(i)(1)(v). Any costs and expenses (including any Excise Tax, income or other taxes or interest and penalties) incurred by the Company on Executive’s behalf or required to be paid by the Company under this Section 20 due to any tax contest, audit or litigation shall be paid by the Company by the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are the subject of the minimum amount tax contest, audit or litigation are remitted to the taxing authority, or where, as a result of such payments to tax contest, audit or litigation, no taxes are remitted, the end of Executive’s taxable year following Executive’s taxable year in which Executive the audit is clearly entitled completed or there is a final and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% nonappealable settlement or other resolution of the rate provided contest or litigation, in accordance with Treasury Regulation Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement1.409A-3(i)(1)(v).

Excise Taxes. (i) If any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) aboveExecutive, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below), the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service Services to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to 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 section 280G(b)(4)(A) of the Code, (ii) all “excess parachute payments” within the meaning of Section 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 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 sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of 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 6(d6(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d6(c) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d6(c), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c6(b), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether 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 of any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Mr. Xxxx X. Xxxxxx January 11, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments.2000 Page 9 (ii) 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 reasonably acceptable to 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)(l1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of Tax independent counsel selected by the Company and reasonably acceptable to you ("Independent Counsel"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(Bsection 280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) 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 the Auditor Independent Counsel in accordance with the principles of Sections sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive you shall be deemed to pay federal income tax taxes at the highest marginal rate rates of federal income taxation applicable to the individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s your residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executivehighest marginal rates. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If 4.1 In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether Employee pursuant to the terms of this Agreement (the "Contract Payments") or in connection with Employee's termination of employment or contingent upon a change in control of the Company pursuant to any other plan, plan or arrangement or other agreement with the Employer or the Company are deemed by (or any affiliate) ("Other Payments" and, together with the Auditor (as defined belowContract Payments, the "Payments"), would be subject to the Company’s excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under "Excise Tax"), imposed by Section 280(G) 4999 of the Internal Revenue Code of 1986Code, as amended (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined determined as provided below), being hereinafter referred to as the “Total Payments”), the Company Employer shall pay to Executive Employee, at the time specified in Section 4.2 below, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by ExecutiveEmployee, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Contract Payments and Other Payments and any federal, state and local income and employment taxes or other tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 4.1, and any interest, penalties or additions to tax payable by Employee with respect thereto, shall be equal to the Total Payments. (ii) 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 Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (i1) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, 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"), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a "parachute payment" within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such "excess parachute payments" (in whole or in part) are otherwise 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 (iii3) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax Counsel in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive Employee shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to Employee in the state and locality of Executive’s residence on the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect , taking into account any limitations applicable to Executive, individuals subject to federal income tax at the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executivehighest marginal rates. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (ia) If In the event it shall be determined that any of the payment or benefit provided under this Agreement, together with any other payments or benefits received Executive is entitled to receive by reason of a Change in Control of the Company or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms a termination of this Agreement or any other plan, arrangement or agreement his employment with the Company are deemed by the Auditor (as defined below)collectively, the Company’s "Payments") would be subject to the excise tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under imposed by Section 280(G) 4999 of the Internal Revenue Code of 19861986 ("Code") or any successor provision, as amended or any interest or penalties are incurred by Executive with respect to such excise tax (the “Code”) (all such payments excise tax, together with any such interest and benefitspenalties, excluding the Gross-Up Payment (which is defined below), being hereinafter collectively referred to as the “Total Payments”"Excise Tax"), the Company shall pay Executive, at least 10 days prior to Executive the time payment of any such Excise Tax is due, an additional amount (the “"Gross-Up Payment”") such that the net amount retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon imposed on the Gross-Up Payment, shall be equal to the Total Excise Tax imposed on the Payments. (iib) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i1) 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, unless in the opinion of Tax Counsel, such excess parachute payments tax counsel selected by the Company and acceptable to Executive the 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 do not constitute parachute payments or excess of the base amount allocable to such reasonable compensation, parachute payments or are otherwise not subject to the Excise Tax, (2) the amount of the Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of "excess parachute payments" within the meaning of Section 280G(b)(1) (after applying clause (1) above), and (iii3) the value of any noncash non-cash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax 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 's residence on the Date 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 6(d))payment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date . (c) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect termination of employment, Executive shall repay to Executivethe Company at the time that the amount of such reduction in Excise Tax is finally determined, the Company shall cause portion of the Gross-Up Payment attributable to be calculated within 30 days such reduction (plus the portion of a written request the Gross-Up Payment attributable to the Excise Tax). In the event that effect from Executive. the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of employment (iii) Executive and the Company shall each reasonably cooperate with the other in connection with including by reason of any administrative or judicial proceedings concerning payment the existence or amount of liability 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 and penalties payable with respect to such excess) at the time that the amount of such excess is finally determined. Executive shall notify the Company of any audit by the Internal Revenue Service of Executive's federal income tax return for Excise Tax the year in which a payment under this Agreement is made within ten (10) days of Executive's receipt of notification of such audit. In addition, Executive shall also notify the Company of the final resolution of such audit within ten (10) days of such resolution." 6. An additional sentence to renumbered Section 10.(a) shall be added to read as follows: "This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without reference to principles of conflict of laws." 7. All other terms of the Employment Agreement shall remain in full force and effect. 8. This instrument, together with the Employment Agreement, contains the entire agreement of the parties with respect to the Total Paymentssubject matter hereof. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (a) (i) If In the event that any of the payments payment or benefits benefit received or to be received by Executive pursuant to Section 6(c) above, whether pursuant to the terms of this Agreement (the “Contract Payments”) or in connection with Executive’s termination of employment or contingent upon a change in control (as defined under Section 280G of the Code) of the Company pursuant to any other plan, plan or arrangement or other agreement with the Company are deemed by (or any affiliate) (“Other Payments” and, together with the Auditor (as defined below)Contract Payments, the Company’s tax counsel (“Tax CounselPayments”) or would be subject to the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended excise tax (the “CodeExcise Tax”) (all such payments and benefitsimposed by Section 4999 of the Code, excluding the Gross-Up Payment (which is defined as determined as provided below), being hereinafter referred to as the “Total Payments”), the Company shall pay to Executive Executive, at the time specified in Section 20(b) below, an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive, after deduction of any total excise taxall amounts required to be paid upon the payment provided for by this Section 20(a), together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federalinterest, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpenalties or additions to tax payable by Executive with respect thereto, shall be equal to the Total total present value of the Excise Taxes imposed upon the Payments; provided, however, that if Executive’s Payment is, when calculated on a net-after-tax basis, less than 110% of the amount of the Payment which could be paid to Executive under Section 280G of the Code without causing the imposition of the Excise Tax, then the Payment shall be limited to the largest amount payable (as described above) without resulting in the imposition of any Excise Tax (such amount, the “Capped Amount”). (ii) For purposes of determining the Capped Amount, whether any of the Total Payments will be subject to the Excise Tax and the amount amounts of such Excise Tax, (iA) all the total amount 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 reasonably acceptable to 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)(l280G(b)(1) of the Code shall be treated as subject to the Excise Tax unlessTax, except to the extent that, in the opinion of independent tax counsel selected by the Company’s independent auditors and acceptable to Executive (“Tax Counsel”), such excess parachute payments a Payment (in whole or in part) represent reasonable compensation for services actually rendered (does not constitute a “parachute payment” within the meaning of Section 280G(b)(4)(B280G(b)(2) of the Code) in excess of the base amount allocable to such reasonable compensation, or such “excess parachute payments” (in whole or in part) are otherwise not subject to the Excise Tax, (B) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (1) the total amount of the Payments or (2) the amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code (after applying clause (A) hereof), and (iiiC) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Tax 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, Executive shall be deemed to pay federal income tax at the highest marginal rate rates of federal income taxation applicable to individuals 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 effective rates of taxation applicable to individuals as are in effect in the state and locality of Executive’s residence on in the Date of Termination (or if there is no Date of Termination, then the date on calendar year in which the Gross-Up Payment is calculated for purposes of this Section 6(d))to be made, net of the maximum reduction in federal income taxes which could that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates. (iii) If the Tax Counsel determines that any Excise Tax is payable by Executive and that the criteria for reducing the Payments to the Capped Amount (as described in Section 20(a)(i) above) is met, then the Company shall reduce the Payments by the amount which, based on the Tax Counsel’s determination and calculations, would provide Executive with the Capped Amount, and pay to Executive such reduced Payments; provided that the Company shall first reduce the severance payment under Section 4(c) and shall next reduce the benefits provided under the Company’s incentive equity plan pursuant to which Executive has been awarded equity. If there has not been a Date of Termination with respect the Tax Counsel determines that an Excise Tax is payable, without reduction pursuant to ExecutiveSection 20(a)(i), above, the Company shall cause pay the required Gross-Up Payment to, or for the benefit of, in accordance with Section 20(b). If the Tax Counsel determines that no Excise Tax is payable by Executive, it shall, at the same time as it makes such determination, furnish Executive with an opinion that he has substantial authority not to report any Excise Tax on his/her federal, state, local income or other tax return. Any determination by the Tax Counsel as to the amount of the Gross-Up Payment shall be binding upon the Company and Executive absent a contrary determination by the Internal Revenue Service or a court of competent jurisdiction; provided, however, that no such determination shall eliminate or reduce the Company’s obligation to provide any Gross-Up Payment that shall be due as a result of such contrary determination. (b) The Gross-Up Payments provided for in Section 20(a) hereof shall be made upon the earlier of (i) the payment to Executive of any Contract Payment or Other Payment or (ii) the imposition upon Executive or payment by Executive of any Excise Tax. (c) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be calculated within paid. Executive shall not pay such claim prior to the expiration of the 30 days day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any payment of a written taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to that effect from time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company and reasonably satisfactory to Executive.; (iii) Executive and the Company shall each reasonably cooperate with the other Company in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect good faith in order to the Total Payments.effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including, but not limited to, additional interest and penalties and related legal, consulting or other similar fees) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or other tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (d) The payments provided Company shall control all proceedings taken in this Section 6(d) connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), determine; provided, however, that if the amounts of Company directs Executive to pay such payments cannot be finally determined on or before such dayclaim and xxx for a refund, the Company shall pay advance the amount of such payment to Executive on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or other tax (including interest or penalties with respect thereto) imposed with respect to such day an estimateadvance or with respect to any imputed income with respect to such advance; and provided, further, that if Executive is required to extend the statute of limitations to enable the Company to contest such claim, Executive may limit this extension solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as determined in good faith the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. In addition, no position may be taken nor any final resolution be agreed to by the Company without Executive’s consent if such position or resolution could reasonably be expected to adversely affect Executive (including any other tax position of Executive unrelated to the matters covered hereby). (e) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Company or the Tax Counsel hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies and Executive thereafter is required to pay to the Internal Revenue Service an additional amount in respect of any Excise Tax, the Company or the Tax Counsel shall determine the amount of the Underpayment that has occurred and any such Underpayment shall promptly be paid by the Company to or for the benefit of Executive. (f) If, after the receipt by Executive of the Gross-Up Payment or an amount advanced by the Company in connection with the contest of an Excise Tax claim, Executive becomes entitled to receive any refund with respect to such claim, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company in connection with an Excise Tax claim, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest the denial of such refund prior to the expiration of 30 days after such determination, such advance shall be forgiven and shall not be required to be repaid. (g) Notwithstanding the foregoing provisions of this Section 20: (i) In no event shall the Company’s liability for Gross-Up Payments to Executive under this Section 20 exceed the amount of the “tax gross-up payment” on any Payment permitted under Treasury Regulation Section 1.409A-3(i)(1)(v); and (ii) In no event shall the Company’s liability for any Gross-Up Payments to Executive under this Section 20, taken together with any gross-up payments payable to Xxx Xxxxx pursuant to his Employment Agreement (the “Green Employment Agreement”) with the Company of even date herewith and any gross-up payments payable to Producers Sales Organization pursuant to the Consulting Agreement (the “Consulting Agreement”) with the Company and Xxxx Xxxx of even date herewith (the “Aggregate Gross-Up Payments”), exceed $1,000,000 (the “Maximum Amount”) in the aggregate. In the event that the Aggregate Gross-Up Payments would exceed $1,000,000, Executive’s Gross-Up Payment under this Section 20 shall not exceed an amount equal to (A) the Maximum Amount, multiplied by (B) a fraction, the numerator of which is equal to the Gross-Up Payment that would be payable to Executive pursuant to this Section 20 (without regard to the application of this Section 20(g)(ii)), and the denominator of which is the aggregate Gross-Up Payments that would be payable to Executive pursuant to this Section 20 and Xxx Xxxxx pursuant to the Green Employment Agreement and Producers Sales Organization pursuant to the Consulting Agreement (without regard to the application of this Section 20(g)(ii) or any comparable provision in such other agreements). (h) The Gross-Up Payment shall be paid in accordance with Treasury Regulation Section 1.409A-3(i)(1)(v). Interest and penalties with respect to any Gross-Up Payment or that are otherwise incurred by the Company on Executive’s behalf or required to be paid by the Company under this Section 20 shall be paid to Executive or on Executive’s behalf only to the extent permitted under Treasury Regulation Section 1.409A-3(i)(1)(v). Notwithstanding the other provisions of this Section 20, all Gross-Up Payments shall be made to the Executive not later than the end of the calendar year following the year in which the Executive remits the related taxes, in accordance with Treasury Regulation Section 6(c1.409A-3(i)(1)(v). Any costs and expenses (including any Excise Tax, income or other taxes or interest and penalties) incurred by the Company on Executive’s behalf or required to be paid by the Company under this Section 20 due to any tax contest, audit or litigation shall be paid by the Company by the end of Executive’s taxable year following Executive’s taxable year in which the taxes that are the subject of the minimum amount tax contest, audit or litigation are remitted to the taxing authority, or where, as a result of such payments to tax contest, audit or litigation, no taxes are remitted, the end of Executive’s taxable year following Executive’s taxable year in which Executive the audit is clearly entitled completed or there is a final and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% nonappealable settlement or other resolution of the rate provided contest or litigation, in accordance with Treasury Regulation Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement1.409A-3(i)(1)(v).

Excise Taxes. (i) If any of the payments or benefits received or to be received by Executive pursuant to Section 6(c) aboveExecutive, whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below), the Company’s 's tax counsel (“"Tax ---- Counsel”") or the Internal Revenue Service Services to constitute an excess parachute payment under Section 280(G) of the Internal Revenue Code of 1986, as amended (the “"Code”") ---- (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”"), the Company shall pay -------------- to Executive an additional amount (the “"Gross-Up Payment”") such that the net amount ---------------- retained by Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “"Excise Tax”") Tax on the Total ---------- Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (ii) 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 section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) ------- do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s '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 6(d6(b)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect to Executive, the Company shall cause the Gross-Up Payment to be calculated within 30 days of a written request to that effect from Executive. (iii) Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d6(c) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d6(c), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c6(b), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. The following provisions shall apply to any excise tax imposed under Section 4999 of the Code (ior its successor) (the "Excise Tax"): (a) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a change in control of the Company or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company are deemed by the Auditor (as defined below)Company, the Company’s tax counsel (“Tax Counsel”) or the Internal Revenue Service to constitute an excess parachute payment under Section 280(G) any person whose actions result in a change in control of the Internal Revenue Code of 1986, as amended Company or any person affiliated with the Company or such person (the “Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “"Total Payments”")) will be subject to the Excise Tax, the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes tax and Excise Tax upon the Gross-Up Paymentpayment provided for by this Section 6, shall be equal to the Total Payments. Such payment shall be made in the manner desc ribed in Section 5(d)(vii) hereof. (iib) For purposes of In 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 any Total Payments shall be treated as “"parachute payments” " (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of Tax Counsel tax counsel selected by the Company's independent auditors and reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the change in control, the Company’s independent auditor (the “Auditor”)Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (ii) and all “"excess parachute payments” " (within the meaning of Section 280G(b)(l280G(b)(1) of the Code Code) shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counselsuch 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 (iiiii) ;the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor Company's independent auditors in accordance with the principles of Sections Section 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 and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income and employment taxes at the highest marginal rate of taxation in the state and locality of the Executive’s 's residence on the Date of Termination (or if there such other time as is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 6(d)hereinafter described), net of the maximum reduction in federal income or employment taxes which could be obtained from deduction of such state and local taxes. . (c) If there has not been a Date the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of Termination with respect to termination of the Executive's employment (or such other time as is hereinafter described), the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax or a federal, state or local income or employment tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. If the Excise Tax exceeds the amount taken into account hereunder (including by reason of any payment the existence or amount of which cannot be calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Excise Taxes. (i) If any of the payments or benefits received or to be received by the Executive pursuant to Section 6(c) above, in connection with a Change in Control or the Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company are deemed by or such Person) (such payments or benefits, being hereinafter referred to as the Auditor "Total Payments") will be subject to any excise tax (as defined below), the Company’s tax counsel (“Tax Counsel”"Excise Tax") or the Internal Revenue Service to constitute an excess parachute payment imposed under Section 280(G) 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”) (all such payments and benefits, excluding the Gross-Up Payment (which is defined below), being hereinafter referred to as the “Total Payments”"), the Company shall pay to the Executive an additional amount (the “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any total excise tax, together with all applicable interest and penalties (collectively, the “Excise Tax”) Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Paymentpayment, shall be equal to the Total Payments. (ii) . 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 section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the change Change in controlControl, the Company’s 's independent auditor (the “"Auditor”"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section section 280G(b)(4)(A) of the Code, (ii) all “"excess parachute payments” " within the meaning of Section 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 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 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 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 's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Gross- Up Payment is calculated for purposes of this Section 6(d)7), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. If there has not been a Date of Termination with respect In the event that the Excise Tax is finally determined to Executivebe less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Company Executive shall cause repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income 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 calculated within 30 days determined at the time of a written request the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such excess) at the time that effect from Executive. (iii) the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments. (iv) The payments provided in this Section 6(d) shall be made not later than the fifth day following the Date of Termination (or if there is no Date of Termination, then the fifth day following date on which the Gross-Up Payment is calculated for purposes of this Section 6(d), provided, however, that if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined in good faith by the Company, in accordance with Section 6(c), of the minimum amount of such payments to which Executive is clearly entitled and shall pay the remainder of such payments (together with interest on the unpaid remainder) at 120% of the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the occurrence of a Date of Termination. At the time that payments are made under this Agreement, the Company shall provide Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from Tax Counsel, the Auditor or other advisors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).