Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event a) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement between the Executive and the Company or otherwise otherwise, but determined without regard to any additional payments required under this Article 7) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions . (b) The determinations of the preceding sentence, if it shall be determined that Employee is entitled to the whether and when a Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Up Payment shall be made to Employee and the amounts payable is required under this Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, 7 shall be made by reducing Payments payable hereunder (including reducing the Company based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by the Company which shall provide detailed supporting calculations to the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, subject to the extent necessaryExcise Tax, through to or such Payment that would be made last in time)earlier time as is requested by the Company. For purposes of reducing the Payments to the Safe Harbor AmountAny Gross-Up Payment, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced as determined pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment Article 7, shall be made at paid by the time such Company to the Executive within twenty-five (25) days of the receipt of notice from the Executive that there has been a Payment is made; subject to the Excise Tax. Any determinations by the Company shall be binding upon the Executive, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that the Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such additional liability. (c) For purposes of any determinations made by the Company acting under Section 7.1(b): (i) All Payments and Gross-Up Payments with respect to the Executive shall be deemed to be “parachute payments” under Section 280G(b) (2) of the Code and to be “excess parachute payments” under Section 280G(b) (1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that the Company determines in no event good faith that a Payment in whole or in part does not constitute a “parachute payment” or otherwise is not subject to Excise Tax; (ii) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (iii) The Executive shall be deemed to pay federal, state and local income taxes at the actual maximum marginal rate applicable to individuals in the calendar year in which the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by or on behalf of the Company or an Affiliate to or for the benefit of Employee, Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”the "Payments") is determined to be an "excess parachute payment" pursuant to Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or any successor or substitute provision of the Code, with the effect that Executive is liable for the payment of the excise tax described in Code Section 4999 or any successor or substitute provision of the Code (the "Excise Tax"), then the Company or an Affiliate shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Payments and any federal, state and local income and employment taxes and Excise Tax on the Gross-Up Payment, shall be equal to the Payments. All determinations required to be made under this paragraph, and the assumptions to be utilized in arriving at such determination, shall be made by the certified public accounting firm used for auditing purposes by the Company or an Affiliate immediately prior to Executive's employment termination or, if the parties determine that such certified public accounting firm cannot make such determination because of legal restrictions, the parties shall agree on a different certified public accounting firm (such certified public accounting firm is hereinafter referred to as the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company (or the Affiliate) and Executive. The Company or the Affiliate shall pay all fees and expenses of the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company, the Affiliate and the Executive, except as provided in the following sentences. As a result of the uncertainty in the application of Code Sections 280G and 4999 at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Internal Revenue Service ("IRS") or other agency will claim that a greater or lesser Excise Tax is due. In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to the Company or an Affiliate, 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 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). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company or an Affiliate shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by Executive with respect to such excess) at the time that the amount of such excess is finally determined. Executive and the Company (or the Affiliate) 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 Payments. The Company or an Affiliate shall pay all fees and expenses of Executive relating to a claim by the IRS or other agency for the Excise Tax as provided below. Executive shall notify the Company in writing of any claim by the IRS that, if successful, would require the payment by the Company or an Affiliate of the Gross-Up Payment or an additional Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which 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 Executive in writing prior to the expiration of such period that it desires to contest such claim, the Company or an Affiliate, subject to the excise provisions of this Section 3.3, shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner. In this connection, Executive agrees, subject to the provisions of this Section 3.3, to (i) prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine, (ii) give the Company or the Affiliate any information reasonably requested by the Company or the Affiliate relating to such claim, (iii) take such action in connection with contesting such claim as the Company or the Affiliate shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iv) cooperate with the Company and the Affiliate in good faith in order to effectively contest such claim and (v) permit the Company and the Affiliate to participate in any proceedings relating to such claim. The foregoing is subject, however, to the following: (i) the Company or an Affiliate shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed by Section 4999 in connection therewith, (ii) if the Company directs Executive to pay such claim and xxx for a refund, the Company or an Affiliate shall advance the amount of the Code 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 any income tax (including interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”thereto) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes)advance or with respect to any imputed income with respect to such advance, including (iii) any Excise Tax imposed on any Gross-up Payment, Employee retains an amount extension of the Gross-up Payment equal statute of limitations relating to the Excise Tax imposed upon all Payments except payment of taxes for the Cobalt Equity Payments. Notwithstanding taxable year of Executive with respect to which such contested amount is claimed to be due shall be limited solely to such contested amount and (iv) the provisions Company's control of the preceding sentence, if it contest shall be determined that Employee is entitled limited to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made issues with respect to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Up Payment under this Section 8.01 shall not would be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment payable hereunder and Executive shall be made at entitled to settle or contest, as the time such Payment is made; providedcase may be, however, that in no event shall any other issue raised by the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of IRS or any such Gross-up Paymentother taxing authority.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (but subject to the remaining provisions 1) 100% of any excise tax described in this Section 8.01§4.2(g), in (2) 100% of any federal, state and local income tax and social security and other employment tax on the event that any payment, benefit or distribution by the Company payment made to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the pay such excise tax imposed by Section 4999 as well as any additional taxes on such payment and (3) 100% of the Code or any interest or penalties assessed by the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”timely payment), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up A Gross Up Payment shall be made by the Company promptly after either the Company or the Company’s independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee Executive by the Company and any other person will result in Executive’s being subject to an excise tax under § 4999 of the amounts payable under Article 6 Internal Revenue Code of 1986, as amended (which shall be reduced so that referred to in this § 4.2(g) as the Parachute Value “Code”) or such an excise tax is assessed against Executive as a result of all Payments, any such payments and other benefits if Executive takes such action (other than waiving Executive’s right to any payments or benefits in the aggregate, equals the Safe Harbor Amount. The reduction excess of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment payments or benefits which Executive has expressly agreed to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment waive under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable § 4.2(g)) as the Company reasonably requests under the circumstances to a particular Payment shall be made at the time mitigate or challenge such Payment is madeexcise tax; provided, however, if the Company or the Company’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by the Company agrees with the determination made by the Company or the Company’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this §4.2(g) shall the Gross-up Payment be made later than in accordance with § 280G of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the related taxes. The Company reasonably requests that Executive take action to mitigate or challenge, or to mitigate and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of challenge, any such Gross-up Paymenttax or assessment (other than waiving Executive’s right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this §4.2(g)) and Executive complies with such request, the Company shall provide Executive with such information and such expert advice and assistance from the Company’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding and except as set forth below, in the event it shall be determined that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise Payment (a “Payment”), as defined below) would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax Excise Tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”defined below), the Company then Executive shall pay be entitled to Employee receive an additional payment (a the “Excise Tax Gross-up Up Payment”) in an amount such that that, after payment by Employee Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Excise Tax Gross-up Up Payment, Employee Executive retains an amount of the Excise Tax Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the foregoing provisions of the preceding sentencethis Section 9(a), if it shall be determined that Employee Executive is entitled to the Excise Tax Gross-up Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor AmountAmount (as defined below), then no Excise Tax Gross-up Up Payment shall be made to Employee Executive and the amounts payable under Article 6 this Agreement shall instead be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6hereunder, if applicable, shall be made by first reducing Payments payable hereunder (including reducing a Payment to zerothe payments under Section 7(a)(x) hereof, unless an alternative method of reduction is elected by Executive, and in the order in which such Payments would any event shall be made in such a manner as to maximize the Value (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Paymentsas defined below) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments actually made to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01Executive. The Company’s obligation to make a Excise Tax Gross-up Payment Up Payments under this Section 8.01 9 shall not be conditioned upon EmployeeExecutive’s termination of employmentemployment or Executive’s Separation from Service. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end For purposes of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and determining the amount of any such Excise Tax Gross-up Up Payment, Executive shall be considered to pay federal income tax at Executive’s actual marginal rate of federal income taxation in the calendar year in which the Excise Tax Gross-Up Payment is to be made and state and local income taxes at Executive’s actual marginal rate of taxation in the state and locality of Executive’s residence on the date on which the Excise Tax Gross-Up Payment is calculated for purposes of this Section 9, net of Executive’s actual reduction in federal income taxes which could be obtained from deduction of such state and local taxes, and taking into consideration the phase-out of Executive’s itemized deductions under federal income tax law.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any paymentcompensation, benefit payment or distribution by the Company Employers to or for the benefit of Employeethe Executive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this Section, and any interest or and/or penalties imposed assessed with respect to such taxesExcise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of Section 6(b)(iii) below, all determinations required to be made under this Section 6(b)(ii), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this Section 6(b)(ii), shall be paid to the Executive within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an "Underpayment"). In the event that the Company exhausts its remedies pursuant to Section 6(b)(iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in Section 6(b)(iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (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 the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive knows 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 he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 6(b)(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6(b)(iii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 6(b)(iii)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6(b)(iii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event that it shall be determined that any payment, benefit payment or distribution by the Company of any type to or for the benefit of Employeethe Executive, by the Employer, the Corporation, any Affiliate, any Person (as defined in Section 17.6(a) hereof) who acquires ownership or effective control of the Corporation or ownership of a substantial portion of the Corporation’s assets (within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise under any other plan, program, policy or arrangement of the Corporation, the Employer or any of their Affiliates (a the “PaymentTotal Payments”), would is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all the Total Payments. Payments except for and reimbursements to which the Cobalt Equity PaymentsExecutive is entitled under this Section 3(a) shall be made not later than April 15 of the taxable year of the Executive next following the taxable year of the Executive in which the Executive receives amounts subject to Section 4999. Notwithstanding the provisions immediately preceding paragraph, in the event that a reduction to the Total Payments in respect of the preceding sentenceExecutive of 10% or less would cause no Excise Tax to be payable, if it shall the Executive will not be determined that Employee is entitled to the a Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Up Payment shall be made to Employee and the amounts payable under Article 6 Total Payments shall be reduced to the extent necessary so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Total Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination subject to the Excise Tax. Unless the Executive shall have given prior written notice to the Employer specifying a different order by which to effectuate the foregoing, the Employer shall reduce or eliminate the Total Payments (x) by first reducing or eliminating the portion of employmentthe Total Payments which are not payable in cash (other than that portion of the Total Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Total Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Total Payments (whether payable in cash or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the farthest in time from the date of the Change in Control. The Gross-up Payment attributable Any notice given by the Executive pursuant to a particular Payment the preceding sentence shall be made at take precedence over the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount provisions of any such Gross-up Paymentother plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event i) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Employee (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement between the Employee and the Company or otherwise otherwise, but determined without regard to any additional payments required under this Section 3) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “Excise Tax”), then the Company Employee shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by the Employee of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, the Employee retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it The Employee shall be determined that Employee is entitled to the apply for all Gross-up PaymentUp Payments as reimbursements of taxes the Employee pays under Code Section 4999 for a particular calendar year, but with such request being filed by the Employee with the Company not later than forty-five (45) days after such year ends, and payment shall occur not later than the March 15th that immediately follows the Parachute Value end of all Payments does not exceed 110% such 45-day period. (ii) The determinations of the Safe Harbor Amount, then no whether and when a Gross-up Up Payment shall be made to Employee and the amounts payable is required under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, this Section 3 shall be made by reducing Payments payable hereunder (including reducing the Company based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by the Company which shall provide detailed supporting calculations to the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, subject to the extent necessaryExcise Tax, through to or such Payment that would be made last in time)earlier time as is requested by the Company. For purposes of reducing the Payments to the Safe Harbor AmountAny Gross-Up Payment, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced as determined pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment 3, shall be made at paid by the time such Company to the Employee within twenty-five (25) days of the receipt of notice from the Employee that there has been a Payment is made; subject to the Excise Tax. Any determinations by the Company shall be binding upon the Employee, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that the Employee is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such additional liability. (iii) For purposes of any determinations made by the Company acting under Section 3(a)(ii): (1) All Payments and Gross-Up Payments with respect to the Employee shall be deemed to be “parachute payments” under Section 280G(b)(2) of the Code and to be “excess parachute payments” under Section 280G(b)(1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that the Company determines in no event good faith that a Payment in whole or in part does not constitute a “parachute payment” or otherwise is not subject to Excise Tax; (2) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (3) Employee shall be deemed to pay federal, state and local income taxes at the actual maximum marginal rate applicable to individuals in the calendar year in which the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question assuming the Employee is subject to applicable phase out rules for the highest income tax payers, notwithstanding the actual income tax rate of the Employee.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution by the Company (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to Executive as a result of the terms of this Agreement or otherwise Transaction (a the “PaymentPayments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Employee Executive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee Executive of all taxes (including any interest or penalties Excise Tax) imposed with respect to such taxes), including any Excise Tax imposed on any upon the Gross-up Up Payment, Employee Executive retains an amount of the Gross-up Up Payment equal to the sum of (x) the Excise Tax imposed upon all the Payments except and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the Cobalt Equity Paymentscalendar year in which the Gross-Up Payment is to be made. Notwithstanding For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. (ii) Subject to the provisions of the preceding sentenceSection 9(e)(i), if it shall all determinations required to be determined that Employee is entitled to the made under this Section 9(e), including whether and when a Gross-up PaymentUp Payment is required, but that the Parachute Value amount of all Payments does not exceed 110% of the Safe Harbor Amount, then no such Gross-up Up Payment shall be made to Employee and the amounts payable under Article 6 shall assumptions to be reduced so that the Parachute Value of all Payments, utilized in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicablearriving at such determinations, shall be made by reducing a nationally recognized public accounting firm that is selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company or Executive (collectively, the “Determination”). All fees and expenses of the Accounting Firm shall be borne solely by the Company, and the Company shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 9(e) with respect to any Payments made to Executive shall be made to the relevant tax authorities no later than the date on which the Excise Tax on such Payments is due to the relevant tax authorities. If the Accounting Firm determines that no Excise Tax is payable hereunder (including reducing by Executive, it shall furnish Executive with a Payment written opinion to zero) such effect, and to the effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return should not result in the order imposition of a negligence or similar penalty. (iii) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which such will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments would are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (beginning together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Payment that would Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be made first in time and continuingpromptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent necessaryhis expenses are reimbursed by the Company, through to such Payment with any reasonable requests by the Company in connection with any contest or disputes with the Internal Revenue Service in connection with the Excise Tax. (iv) Executive expressly acknowledges and agrees that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Up Payment is limited exclusively to Excise Tax that may come due in connection with Payments to or for the benefit of Executive as a result of the Transaction, and that Executive will not be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as entitled to whether a any Gross-up Payment is required and the amount Up Payments as a result of any such Gross-up Paymentchange of control that may occur following the Effective Date.

Gross-Up Payment. Notwithstanding anything a. Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to Employee (the terms of this Agreement or otherwise (a “PaymentPayments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect of 1986, as amended from time to such excise tax time (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Code”) (the “Excise Tax”), then the Company shall pay to the Employee an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties Excise Tax) imposed with respect to such taxes), including any Excise Tax imposed on any upon the Gross-up Up Payment, the Employee retains an amount of the Gross-up Up Payment equal to the sum of (x) the Excise Tax imposed upon all the Payments except for and (y) the Cobalt Equity Payments. Notwithstanding the provisions products of any deductions disallowed because of the preceding sentence, if it shall be determined that Employee is entitled to inclusion of the Gross-up Up Payment in the Employee’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, but the Employee shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, and (B) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Employee’s adjusted gross income. b. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (Underpayment) or Gross-Up Payments are made by the Company which should not have been made (Overpayment), consistent with the calculations required to be made hereunder. In the event that the Parachute Value Employee thereafter is required to make payment of all Payments does not exceed 110% any Excise Tax or additional Excise Tax, any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Safe Harbor Amount, then no Code) shall be promptly paid by the Company to or for the benefit of the Employee. In the event the amount of the Gross-up Up Payment exceeds the amount necessary to reimburse the Employee for the Employee’s Excise Tax, any such Overpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be made promptly paid by the Employee (to Employee and the amounts payable under Article 6 shall be reduced so that extent he has received a refund if the Parachute Value applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of all Payments, in the aggregate, equals the Safe Harbor AmountCompany. The reduction of the amounts payable under Article 6, if applicable, Employee shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuingcooperate, to the extent necessaryhis expenses are reimbursed by the Company, through to such Payment that would be made last with any reasonable requests by the Company in time). For purposes of reducing connection with any contest or disputes with the Payments to Internal Revenue Service in connection with the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExcise Tax.

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary in Severance Benefits or any other benefits or payments under this Agreement (but subject other than pursuant to this Section) by reason of the remaining provisions accelerated vesting of this Section 8.01stock options thereunder (together, the "Total Benefits"), and in the event that any paymentof the Total Benefits will be subject to the Excise Tax, benefit or distribution the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Company Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or for benefits received or to be received by the benefit Executive in connection with a Change in Control or the Executive's termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (any other agreement, plan or arrangement with the Company, any Person whose actions result in a “Payment”)Change in Control or any Person affiliated with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Cod, would and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-cash benefits or any interest deferred payment or penalties benefit shall be determined by the Company's independent auditors in accordance with respect 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 taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by the Executive). 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 of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such excise tax reduction (such excise tax, together with any such interest or penalties, are hereinafter collectively referred plus that portion of the Gross-Up Payment attributable to as the “Excise Tax”, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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 (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall pay to Employee make an additional payment (a “Gross-up Up Payment”) , determined as previously described, to the Executive in an amount respect to such that after payment excess (plus any interest, penalties or additions payable by Employee of all taxes (including any interest or penalties imposed the Executive with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zeroexcess) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentexcess is finally determined.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in i) In the event it shall be determined that any paymentcompensation, benefit payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentSeverance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this subsection, and any interest or and/or penalties imposed assessed with respect to such taxesExcise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the relevant tax authorities as withholding taxes on behalf of the Executive at such time or times when each Excise Tax Payment is due. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to the relevant tax authorities as withholding taxes on behalf of the Executive. (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 the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after a Gross-Up Payment by the Company on behalf of the Executive pursuant to this Section 6(h), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after a Gross-Up Payment by the Company pursuant to this Section 5(h), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything SECTION 8.01. Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding and except as set forth below, in the event it shall be determined that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), Payment would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a the “Gross-up Up Payment”) in an amount such that that, after payment by Employee the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment Up Payments under this Section 8.01 Article VIII shall not be conditioned upon Employeethe Executive’s termination of employment. SECTION 8.02. The Subject to the provisions of Section 8.03, all determinations required to be made under this Article VIII, including whether and when a Gross-up Up Payment attributable is required, the amount of such Gross-Up Payment and the assumptions to a particular Payment be utilized in arriving at such determination, shall be made at by the Company’s auditor in effect immediately prior to a Change of Control or such other nationally recognized certified public accounting firm as may be designated by the Executive (the “Accounting Firm”). The Accounting Firm shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment or such earlier time as is requested by the Company. The Accounting Firm shall not determine that no Excise Tax is payable by the Executive unless it delivers to the Executive a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 8.02, shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be final and binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments that will not have been made by the Company should have been made (the “Underpayment”), consistent with the calculations required to be made hereunder. In the event the Company exhausts its remedies pursuant to Section 8.03 and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Payment Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. SECTION 8.03. The Executive shall notify the Company in writing of any claims by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but not later than 30 days after the Executive actually receives notice in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is maderequested to be paid; provided, however, that the failure of the Executive to notify the Company of such claim (or to provide any required information with respect thereto) shall not affect any rights granted to the Executive under this Article VIII except to the extent that the Company is materially prejudiced in no event the defense of such claim as a direct result of such failure. 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 the Company desires to contest such claim, the Executive shall: (a) give the Company any information reasonably requested by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company and reasonably acceptable to the Executive; (c) cooperate with the Company in good faith in order to effectively contest such claim; and (d) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income or employment tax (including interest and penalties) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 8.03, the Company shall control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its sole discretion, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that, if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties) imposed with respect to such advance or with respect to any imputed income in connection with such advance; and provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which the Gross-up 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. SECTION 8.04. If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 8.03, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 8.03) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 8.03, a determination is made later than that the end Executive shall not be entitled to any refund with respect to such claim, and the Company does not notify the Executive in writing of Employee’s taxable year next following Employee’s taxable year in which Employee remits its intent to contest such denial of refund prior to the related taxes. The Company and Employee expiration of 30 days after such determination, then such advance shall make an initial determination as not be required to whether a Gross-up Payment is required be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up Up Payment required to be paid. SECTION 8.05. Notwithstanding any other provision of this Article VIII, the Company may, in its sole discretion, withhold and pay over to the Internal Revenue Service or any other applicable taxing authority, for the benefit of the Executive, all or any portion of the Gross-Up Payment, and the Executive hereby consents to such withholding.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (but subject to the remaining provisions 1) 100% of any excise tax described in this Section 8.01§ 4.2(g), in (2) 100% of any federal, state and local income tax and social security and other employment tax on the event that any payment, benefit or distribution by the Company payment made to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the pay such excise tax imposed by Section 4999 as well as any additional taxes on such payment and (3) 100% of the Code or any interest or penalties assessed by the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”timely payment), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up A Gross Up Payment shall be made by INTCX promptly after either INTCX or INTCX’s independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee Executive by INTCX and any other person will result in Executive’s being subject to an excise tax under § 4999 of the amounts payable under Article 6 Internal Revenue Code of 1986, as amended (which shall be reduced so that referred to in this § 4.2(g) as the Parachute Value “Code”) or such an excise tax is assessed against Executive as a result of all Payments, any such payments and other benefits if Executive takes such action (other than waiving Executive’s right to any payments or benefits in the aggregate, equals the Safe Harbor Amount. The reduction excess of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment payments or benefits which Executive has expressly agreed to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment waive under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable § 4.2(g)) as INTCX reasonably requests under the circumstances to a particular Payment shall be made at the time mitigate or challenge such Payment is madeexcise tax; provided, however, if INTCX or INTCX’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $15,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by INTCX agrees with the determination made by INTCX or INTCX’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this § 4.2(g) shall the Gross-up Payment be made later than in accordance with § 280G of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code and any applicable related taxes. The Company regulations (whether proposed, temporary or final) and Employee shall make an initial determination as any related Internal Revenue Service rulings and any related case law and, if INTCX reasonably requests that Executive take action to whether a Gross-up Payment is required mitigate or challenge, or to mitigate and the amount of challenge, any such Gross-up Paymenttax or assessment (other than waiving Executive’s right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) and Executive complies with such request, INTCX shall provide Executive with such information and such expert advice and assistance from INTCX’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any paymentcompensation, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentSeverance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company then Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that the net amount retained by Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this subsection, and any interest or and/or penalties imposed assessed with respect to such taxesExcise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of Subparagraph (iii) below, all determinations required to be made under this clause (ii), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or Executive. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the Date of Termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this clause (ii), shall be paid to Executive within five days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, the Company shall furnish Executive with an opinion of counsel that failure to report the Excise Tax on Executive’s applicable Federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to Subparagraph (iii) below and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by Executive in connection with the proceedings described in Subparagraph (iii) below, shall be promptly paid by the Company to or for the benefit of Executive. (iii) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Subparagraph (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by Executive of an amount advanced by the Company pursuant to Subparagraph (iii) above, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of Subparagraph (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Subparagraph (iii) above, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to (a) In the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)event it shall be finally determined, in the event a proceeding that is non-appealable, that any payment, award, benefit or distribution by the Company (or any of its affiliated entities) to or for the benefit of Employee, the Executive (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 2) (a “Payment”), would be ) is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any corresponding provisions of state or local tax laws, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments except which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2(b) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for the Cobalt Equity Payments. Notwithstanding the provisions benefit of the preceding sentenceExecutive. (b) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if it shall be determined that Employee is entitled to successful, would require the payment by the Company of the Gross-up Up Payment, . Such notification shall be given as soon as practicable but that no later than ten business days after the Parachute Value Executive is informed in writing of all Payments does not exceed 110% such claim and shall apprise the Company of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee nature of such claim and the amounts payable under Article 6 shall date on which such claim is requested to be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amountpaid. The reduction Executive shall not pay such claim prior to the expiration of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in 30-day period following the order in date on which it gives such Payments would be made (beginning with such Payment that would be made first in time and continuing, notice to the extent necessary, through Company (or such shorter period ending on the date that any payment of taxes with respect to such Payment that would be made last in timeclaim is due). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of Company notifies the amount payable under Article 6 would not result Executive in a reduction of the Parachute Value of all Payments writing prior to the Safe Harbor Amountexpiration of such period that it desires to contest such claim, then no amounts payable under Article 6 the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall be reduced pursuant reasonably request in writing from time to this Section 8.01. The time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company’s obligation ; (iii) cooperate with the Company in good faith in order effectively to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable contest such claim; and (iv) permit the Company to a particular Payment shall be made at the time participate in any proceedings relating to such Payment is madeclaim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in no event connection with such contest and shall indemnify and hold the GrossExecutive harmless, on an after-up Payment be made later than tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the end foregoing provisions of Employee’s this Section 2(b), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year next following Employeeof the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s taxable year in control of the contest shall be limited to issues with respect to which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up 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. (c) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 2(b), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 2(b)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 2(b), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up PaymentUp Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (but subject to the remaining provisions 1) 100% of any excise tax described in this Section 8.01§ 4.2(g), in (2) 100% of any federal, state and local income tax and social security and other employment tax on the event that any payment, benefit or distribution by the Company payment made to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the pay such excise tax imposed by Section 4999 as well as any additional taxes on such payment and (3) 100% of the Code or any interest or penalties assessed by the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”timely payment), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up A Gross Up Payment shall be made by INTCX promptly after either INTCX or INTCX’s independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee Executive by INTCX and any other person will result in Executive’s being subject to an excise tax under § 4999 of the amounts payable under Article 6 Internal Revenue Code of 1986, as amended (which shall be reduced so that referred to in this § 4.2(g) as the Parachute Value “Code”) or such an excise tax is assessed against Executive as a result of all Payments, any such payments and other benefits if Executive takes such action (other than waiving Executive’s right to any payments or benefits in the aggregate, equals the Safe Harbor Amount. The reduction excess of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment payments or benefits which Executive has expressly agreed to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment waive under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable § 4.2(g)) as INTCX reasonably requests under the circumstances to a particular Payment shall be made at the time mitigate or challenge such Payment is madeexcise tax; provided, however, if INTCX or INTCX’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by INTCX agrees with the determination made by INTCX or INTCX’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this § 4.2(g) shall the Gross-up Payment be made later than in accordance with § 280G of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code and any applicable related taxes. The Company regulations (whether proposed, temporary or final) and Employee shall make an initial determination as any related Internal Revenue Service rulings and any related case law and, if INTCX reasonably requests that Executive take action to whether a Gross-up Payment is required mitigate or challenge, or to mitigate and the amount of challenge, any such Gross-up Paymenttax or assessment (other than waiving Executive’s right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this § 4.2(g)) and Executive complies with such request, INTCX shall provide Executive with such information and such expert advice and assistance from INTCX’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (but subject 1) 100% of any excise tax described in this Section 11, (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Employee which are related to the remaining provisions timely payment of this Section 8.01such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment), in the event that any payment, benefit or distribution . A Gross Up Payment shall be made by the Company to or for in a lump sum at the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant Company’s option either directly to the terms of United State Treasury or to Employee after either the Company or the Company’s independent accountants determine that any payments and benefits called for under this Agreement or otherwise (a “Payment”), would be together with any other payments and benefits made available to Employee by the Company and any other person will result in Employee being subject to the an excise tax imposed by Section under § 4999 of the Code or any interest or penalties with respect to such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee’s right to any payments or benefits in excess of the payments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, if the Company or the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the determination made by the Company or the Company’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this Section 11 shall the Gross-up Payment be made later in accordance with § 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than the end of waiving Employee’s taxable year next following Employee’s taxable year right to any payments or benefits in excess of the payments or benefits which Employee remits the related taxes. The Company has expressly agreed to waive under this Section 11 and Employee complies with such request, the Company shall make an initial determination provide Employee with such information and such expert advice and assistance from the Company’s independent accountants, lawyers and other advisors as to whether a Gross-up Payment is required Employee may reasonably request and the amount of shall pay for all expenses incurred in effecting such compliance and any such Gross-up Paymentrelated fines, penalties, interest and other assessments.

Gross-Up Payment. (a) Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)contrary, in the event that Executive becomes entitled to receive or receives any paymentpayment or benefit under this Agreement or under any other plan, agreement, or arrangement with the Company, any person whose actions result in a Change of Control or any person affiliated with the Company or such person (all such payments and benefits, excluding the Gross-Up Payment, being referred to herein as the "Total Payments") and it is determined that any of the Total Payments will be subject to any excise tax pursuant to Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any similar or successor provision (the "Excise Tax"), the Company shall make an additional lump-sum cash payment to Executive (the "Gross-Up Payment") in an amount such that the net amount retained by Executive from the Total Payments, after deduction of (i) the Excise Tax on the Total Payments, and (ii) any federal, foreign, state or local income or employment tax and Excise Tax imposed on the Gross-Up Payment, but before deduction for any federal, foreign, state or local income or employment tax withholding on the Total Payments, shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, the Gross-Up Payment shall be deemed to be subject to federal income taxes at the highest rate of federal income taxation applicable to individuals that is in effect for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest rate of taxation applicable to individuals in the state and locality of Executive's residence on the date of termination of Executive's employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes (as determined by assuming that such deduction is subject to the maximum limitation applicable to itemized deductions under Section 68 of the Code and any other limitations applicable to the deduction of state and local income taxes under the Code). (b) All determinations required to be made under this Section 3.3.7, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a reputable independent public accounting firm or independent tax counsel appointed by the Company (the "Firm"). All determinations made by the Firm under this Section 3.3.7 shall be conclusive and binding on both the Company and Executive, and the Firm shall provide its determinations and any supporting calculations to the Company and Executive within ten (10) business days after Executive's employment terminates under any of the circumstances described in Section 3.3.1, or such earlier time as is requested by the Company. In the event that the Firm determines that a Gross-Up Payment is required, the Company shall pay such Gross-Up Payment to or for the benefit of Executive as promptly as practical after the Company's receipt of the Firm's determination, but not later than ten (10) days after such receipt. For purposes of making its determinations under this Section 3.3.7, the Firm may rely on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code. The Company and Executive shall furnish to the Firm such information and documents as the Firm may reasonably request in making its determinations. The Company shall bear all fees and expenses charged by the Firm in connection with its services. (c) As a result of the uncertainty in the application of Section 280G and Section 4999 of the Code, it is possible that amounts will have been paid or distribution distributed by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable Executive pursuant to this Agreement (including a Gross-Up Payment) that should not have been so paid or distributed (an "Overpayment") or that the terms Company will fail to pay or distribute amounts to or for the benefit of Executive pursuant to this Agreement (including a Gross-Up Payment) that should have been made (an "Underpayment"). In the event it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding (a "Final Determination") that an Overpayment has been made, any such Overpayment shall be treated for all purposes as a loan by the Company to Executive, which loan shall be repaid by Executive upon demand together with interest calculated at the lowest interest rate authorized for such loans under the Code without a requirement that further interest be imputed. In the event it is established pursuant to a Final Determination that an Underpayment has occurred, any such Underpayment promptly shall be paid by the Company to Executive, together with interest calculated at the lowest interest rate authorized for such loans under the Code without a requirement that further interest be imputed. The determination of Overpayment or Underpayment, as the case may be, for purposes of this Agreement or otherwise (a “Payment”), would Section 3.3.7 shall be subject to the excise tax imposed confirmation by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentFirm.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event a) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Article 7) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall will the amount of the Gross-up Up Payment payable pursuant to this Article 7 exceed Two Hundred Fifty Thousand Dollars ($250,000). (b) The determinations of whether and when a Gross-Up Payment is required under this Article 7 shall be made by independent tax counsel (the "Tax Counsel") based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by an independent nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. The Tax Counsel and Accounting Firm shall initially be appointed by the Company after consultation in good faith with the Executive and subject to the approval of the Executive (which approval shall not be unreasonably withheld), provided, however, that if the potential amount of the Gross-Up Payment (but for the limit in Section 7.1(a) above) could exceed Two Hundred Fifty Thousand Dollars ($250,000), the Executive shall have the opportunity to appoint a new Tax Counsel and Accounting Firm after consultation in good faith with the Company. If the Tax Counsel and Accounting Firm selected by the Company determine that the amount of the Gross-Up Payment is less than Two Hundred Fifty Thousand Dollars ($250,000), but Executive provides an opinion of a second independent Tax Counsel that the Gross-Up Payment (but for the limit in Section 7.1(a) above) could be greater than Two Hundred Fifty Thousand Dollars ($250,000) then Executive shall be entitled to appoint the Tax Counsel and the Accounting Firm after consultation in good faith with the Company and subject to the approval of the Company (which approval shall not be unreasonably withheld). All fees and expenses of any Tax Counsels and Accounting Firms referred to above shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Article 7, shall be paid by the Company to the Executive within ten (10) days of the receipt of the Accounting Firm's determination. Any determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company and the Executive, provided, however, if it is later than determined that there has been an underpayment of Excise Tax and that Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the end Company shall provide a similar full gross-up on such additional liability, subject to the overall Two Hundred Fifty Thousand Dollars ($250,000) limit set forth in Section 7.1(a) above. (c) For purposes of Employee’s taxable year next following Employee’s taxable any determinations made by any Tax Counsel and Accounting Firm acting under Section 7.1(b) above: (i) All Payments and Gross-Up Payments with respect to Executive shall be deemed to be "parachute Payments" under Section 280G(b)(2) of the Code and to be "excess parachute payments" under Section 280G(b)(1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that such Tax Counsel determines in writing in good faith that a Payment in whole or in part does not constitute a "parachute payment" or otherwise is not subject to Excise Tax; (ii) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (iii) Executive shall be deemed to pay federal, state and local income taxes at the actual marginal rate applicable to individuals in the calendar year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event If eRCG or its accountants determine that any payment, benefit or distribution by the Company to or payments called for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of under this Agreement or otherwise (a “Payment”), would be any other payments or benefits made available to Executive by eRCG or its affiliates will result in Executive being subject to the an excise tax imposed by ("EXCISE TAX") under Section 4999 of the Internal Revenue Code of 1986, as amended, or any successor statute thereto, or if an Excise Tax is assessed against Executive as a result of such payments or other benefits, eRCG shall make a "Gross-Up Payment" (hereinafter defined) to or on behalf of Executive as and when such determination(s) and assessment(s), as appropriate, are made, subject to the conditions of this Section 4.5. A "Gross-Up Payment" shall mean a payment to or on behalf of Executive that shall be sufficient to pay (i) any Excise Tax in full, (ii) any federal, state and local income tax and Social Security or other employment tax on the payment made to pay such Excise Tax as well as any additional Excise Tax on the Gross-Up Payment, and (iii) any interest or penalties with respect to such excise tax (such excise tax, together with any assessed by the Internal Revenue Service on the Executive if such interest or penalties, penalties are hereinafter collectively referred attributable to as the “Excise Tax”), the Company shall pay eRGC's failure to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment comply with its obligations under this Section 4.5 or applicable law. Any determination under this Section 4.5 by Employee of all taxes (including any interest eRCG or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment its accountants shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction accordance with Section 280G of the amounts payable Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and related case law. Executive shall take such action (other than waiving Executive's right to any payments or benefits) as eRCG may reasonably request under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment the circumstances to zero) in the order in which mitigate or challenge such Payments would be made (beginning tax. If eRCG reasonably requests that Executive take action to mitigate or challenge any such tax or assessment and Executive complies with such Payment that would be made first request, eRCG shall provide Executive with such information and such expert advice and assistance from eRCG's accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in time effecting such compliance and continuingany related fines, to the extent necessarypenalties, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (interest and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentassessments.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event it shall be determined that any payment, benefit payment or distribution by the Company of any type to or for the benefit of EmployeeExecutive, by the Company, any Affiliate, any person who acquires ownership or effective control of the Company or ownership of a substantial portion of the Company's assets (within the meaning of Section 280G of the Code and the regulations thereunder) or any Affiliate of such person, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to any of the terms of this Agreement or otherwise (a “Payment”the "Total Payments"), would is or will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), the Company then Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any income tax, employment tax or Excise Tax Tax, imposed on any Gross-up upon the Gross Up Payment, Employee Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) All mathematical determinations, and all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions determinations as to whether any of the preceding sentence, if it shall be determined that Employee is entitled to Total Payments are "parachute payments" (within the Gross-up Payment, but that the Parachute Value meaning of all Payments does not exceed 110% Section 280G of the Safe Harbor AmountCode), then no Gross-up Payment shall that are required to be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; providedSubparagraph (b), however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination including determinations as to whether a Gross-up Up Payment is required required, the amount of such Gross-Up Payment and amounts relevant to the last sentence of this Subparagraph (b), shall be made by an independent accounting firm selected by Executive from among the five (5) largest accounting firms in the United States (the "Accounting Firm"), which shall provide its determination (the "Determination"), together with detailed supporting calculations regarding the amount of any such Gross-up PaymentUp Payment and any other relevant matter, both to the Company and Executive by no later than ten (10) days following the Change in Control, or such earlier time as is requested by the Company or Executive (if Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax). If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive and the Company with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the reasons therefor) and that Executive has substantial authority not to report any Excise Tax on his federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to Executive within twenty (20) days after the Determination (and all accompanying calculations and other material supporting the Determination) is delivered to the Company by the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and Executive, absent manifest error. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company should have been made ("Underpayment"), or that Gross-Up Payments will have been made by the Company which should not have been made ("Overpayments"). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. In the case of an Overpayment, Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from, and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment, provided, however, that (i) Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or has recovered as a refund from the applicable taxing authorities and (ii) this provision shall be interpreted in a manner consistent with the intent of this Paragraph 10 of Section B, which is to make Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in Executive repaying to the Company an amount which is less than the Overpayment.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in i) In the event it shall be determined that any paymentcompensation, benefit payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentSeverance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this subsection, and any interest or and/or penalties imposed assessed with respect to such taxesExcise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (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 the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any paymentcompensation, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “PaymentSeverance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company then Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that the net amount retained by Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this subsection, and any interest or and/or penalties imposed assessed with respect to such taxesExcise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of Subparagraph (iii) below, all determinations required to be made under this clause (ii), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within 15 business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or Executive. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the Date of Termination, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this clause (ii), shall be paid to Executive within five days of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, the Company shall furnish Executive with an opinion of counsel that failure to report the Excise Tax on Executive’s applicable Federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to Subparagraph (iii) below and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by Executive in connection with the proceedings described in Subparagraph (iii) below, shall be promptly paid by the Company to or for the benefit of Executive. (iii) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than 10 business days after Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Subparagraph (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by Executive of an amount advanced by the Company pursuant to Subparagraph (iii) above, Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of Subparagraph (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Subparagraph (iii) above, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event that it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a the “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), Executive shall be subject to paid an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed by under Section 4999 of the Code or Code, and any interest or penalties federal, state and local income and employment tax and excise tax imposed upon the Gross-Up Payment shall be equal to the Payment. For purposes of determining the amount of the Gross-Up Payment, 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 taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) on the date on which Executive’s employment terminates, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such excise tax state and local taxes. 4.6.1. All determinations to be made under this Section 4.6 shall be made by a nationally-recognized independent public accountant (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise TaxAccounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company and Executive within 30 days of each of a Change of Control and the termination of Executive’s employment. Any such determination by the Accounting Firm shall be binding upon the Company and Executive. Six months and one day after the termination of Executive’s employment, the Company shall pay (or cause to Employee an additional be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such amounts as are due to Executive pursuant to this Section 4.6. 4.6.2. Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment (a “by the Company of the Gross-up Payment”) in an amount Up Payment (taking into account any amounts theretofore already paid by the Company). Such notification shall be given as soon as practicable but no later than ten business days after Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that after any payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxesclaim is due), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result Company notifies Executive in a reduction of the Parachute Value of all Payments writing prior to the Safe Harbor Amountexpiration of such period that it desires to contest such claim, then no amounts payable under Article 6 Executive shall: (a) give the Company any information reasonably request by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall be reduced pursuant reasonably request in writing from time to this Section 8.01. The time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company’s obligation ; (c) cooperate with the Company in good faith in order to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable effectively contest such claim; and (d) permit the Company to a particular Payment shall be made at the time participate in any proceedings relating to such Payment is madeclaim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in no event connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any excise tax, income tax or employment tax, including interest and penalties, with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the Grossforegoing provisions of this Section 4.6.2, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, however, that if the Company directs Executive to pay such claim and xxx for a refund the Company shall advance the amount of such payment to Executive, on an interest-up Payment be made later than free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further that any extension of the end statute of Employee’s limitations relating to payment of taxes for the taxable year next following Employeeof Executive with respect to which such contested amount is claim to be due is limited solely to such contested amount. Furthermore, the Company’s taxable year in control of the contest shall be limited to issues with respect to which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 4.6.3. If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 4.6, 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 pursuant to this Section 4.6, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up PaymentUp Payment required to be paid. 4.6.4. All of the fees and expenses of the Accounting Firm in performing determinations referred to in subsections 4.6.1 and 4.6.2 above shall be borne solely by the Company.

Gross-Up Payment. Notwithstanding anything (a) Subject to the contrary possible limitation set forth in this Agreement (but subject Section 10.1(b) below, if any payment or benefit received or to the remaining provisions of this Section 8.01), be received by Executive in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement connection with a Change in Control or otherwise (a “Payment”), ) would be subject Executive to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise TaxCode”), the Company then Executive shall pay be entitled to Employee receive an additional payment from the Company, in an amount not to exceed two hundred fifty thousand dollars (a $250,000) (the “Gross-up Up Payment”) in an amount ), such that after the payment by Employee of all taxes (including including, without limitation, any income or employment taxes, any interest or penalties imposed with respect to such taxes), including and any Excise Tax additional excise tax imposed by Section 4999 of the Code) on any the Gross-up Up Payment, Employee retains Executive shall retain an amount equal to the full Excise Tax. For purposes of determining the amount of the Gross-up Up Payment, Executive shall be deemed to have (i) paid federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made; (ii) paid federal employment taxes at Executive’s actual marginal rate for the calendar year in which the Gross-Up Payment is to be made; and (iii) paid applicable state and local income taxes at the highest rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. Except as otherwise provided herein, Executive shall not be entitled to any additional payments or other indemnity arrangements in connection with the Payment or the Gross-Up Payment. Notwithstanding any other provision in Section 10.1, the aggregate amount of the Gross-Up Payment shall not exceed two hundred fifty thousand dollars ($250,000). (b) Notwithstanding the foregoing, the amount of the Payment when aggregated with the Gross-Up Payment (the “Total Parachute Payments”) shall be equal to the Excise Tax imposed upon all Payments except for Reduced Amount. The “Reduced Amount” shall be either (i) the Cobalt Equity Payments. Notwithstanding the provisions largest portion of the preceding sentence, if it shall be determined Total Parachute Payments that Employee is entitled would result in no portion of the Total Parachute Payments being subject to the Gross-Excise Tax, or (ii) the largest portion, up Paymentto and including the total, but of the Total Parachute Payments, whichever amount referenced in the foregoing (i) or (ii), after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax, results in Executive’s receipt of the greatest economic benefit notwithstanding that all or some portion of the Total Parachute Payments may be subject to the Excise Tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Total Parachute Value of all Payments does not exceed 110% of equals the Safe Harbor Reduced Amount, then no Gross-up Payment reduction shall be made occur in a manner necessary to Employee provide Executive with the greatest economic benefit. If more than one manner of reduction of payments or benefits necessary to arrive at the Reduced Amount yields the greatest economic benefit, the payments and the amounts payable under Article 6 benefits shall be reduced pro rata. (c) The independent registered public accounting firm engaged by the Company for general audit purposes as of the day prior to the effective date of the event described in Section 280G(b)(2)(A)(i) of the Code shall make all determinations required to be made under this Section 10.1. If the independent registered public accounting firm so engaged by the Company is serving as accountant or auditor for the individual, entity or group effecting such event, the Company shall appoint a nationally recognized independent registered public accounting firm to make the determinations required hereunder. The Company shall bear all expenses with respect to the determinations by such independent registered public accounting firm (the “Accounting Firm”) required to be made hereunder. The Accounting Firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which Executive’s right to a Payment is triggered (if requested at that time by the Parachute Value Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of all Paymentsthe Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive. (d) As a result of the uncertainty in the aggregate, equals the Safe Harbor Amount. The reduction application of Section 4999 of the amounts payable under Article 6Code at the time of the initial determination by the Accounting Firm hereunder, if applicableit 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. If the Company exhausts its remedies pursuant to Section 10.1(e) hereof and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, and any such Underpayment, together with any additional penalties or interest thereon, shall be made promptly paid by reducing Payments payable hereunder the Company to or for the benefit of Executive. (including reducing e) 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 Payment to zeroGross-Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive is informed in writing of such claim and shall apprise the order in Company of the nature of such claim and the date on which such Payments would claim is requested to be made (beginning with paid. Executive shall not pay such Payment that would be made first in time and continuing, claim prior to the extent necessary, through expiration of the thirty (30)-day period following the date on which Executive has given such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such Payment that would be made last in timeclaim is due). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result Company notifies Executive in a reduction of the Parachute Value of all Payments writing prior to the Safe Harbor Amountexpiration of such period that it desires to contest such claim, then no amounts payable under Article 6 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 be reduced pursuant reasonably request in writing from time to this Section 8.01. The time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company’s obligation ; (iii) Cooperate with the Company in good faith in order effectively to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable contest such claim; and (iv) Permit the Company to a particular Payment shall be made at the time participate in any proceedings relating to such Payment is madeclaim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in no event connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or federal, state, and local income and employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 10.1(e), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or federal, state, and local income and employment 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, Executive shall not be required to extend the statute of limitations relating to the payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due, other than an extension limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-up Up Payment would be made later than payable hereunder and Executive shall be entitled to settle or contest, as the end case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (f) If, after the receipt by Executive of Employee’s taxable year next following Employee’s taxable year in which Employee remits any amount paid by the related taxes. The Company and Employee shall make an initial determination as relating to whether a Gross-up Payment pursuant to Section 10.1(a) hereof or advanced by the Company pursuant to Section 10.1(e) hereof, Executive becomes entitled to receive any refund with respect to such amounts, Executive shall (subject to the Company’s complying with the requirements of Section 10.1(e) hereof) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 10.1(e) hereof, a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid, and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. (g) If, pursuant to regulations issued under Section 280G or 4999 of the Code, the Company and Executive are required to make a preliminary determination of the amount of an excess parachute payment and thereafter a redetermination of the Excise Tax is required or the Company is permitted to make a recalculation with regard to stock options and elects to do so under the applicable regulations, the parties shall request the Accounting Firm to make such redetermination. If as a result of such redetermination an additional Gross-Up Payment is required, the amount thereof shall be paid by the Company to Executive within ten (10) business days of the receipt of the Accounting Firm’s determination. If the redetermination of the Excise Tax results in a reduction of the Excise Tax, Executive shall take such steps as the Company may reasonably direct in order to obtain a refund of the excess Excise Tax paid. If the Company determines that any suit or proceeding is necessary or advisable in order to obtain such refund, the provisions of Section 10.1(e) hereof relating to the contesting of a claim shall apply to the claim for such refund, including, without limitation, the provisions concerning legal representation, cooperation by Executive, participation by the Company in the proceedings and indemnification by the Company. Upon receipt of any such refund, Executive shall promptly pay the amount of such refund to the Company. If the amount of the income taxes otherwise payable by Executive in respect of the year in which Executive makes such payment to the Company is reduced as a result of such payment, Executive shall, no later than the filing of the income tax return in respect of such year, pay the amount of such tax benefit to the Company. In the event there is a subsequent redetermination of Executive’s income taxes resulting in a reduction of such tax benefit, the Company shall, promptly after receipt of notice of such reduction, pay to Executive the amount of such reduction. If the Company objects to the calculation or recalculation of the tax benefit, as described in the preceding two sentences, the Accounting Firm shall make the final determination of the appropriate amount. Executive shall not be obligated to pay to the Company the amount of any further tax benefits that may be realized by him as a result of paying to the Company the amount of the initial tax benefit. (h) In the event that the Excise Tax is subsequently determined to be less than initially determined, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-Up Payment that would not have been paid if the Excise Tax as subsequently determined had been applied initially in calculating the Gross-Up Payment, with the amount of such repayment determined by the Accounting Firm; provided that the amount of required repayment by Executive shall be reduced, as the Accounting Firm may determine, in order to avoid putting Executive in a worse after-tax position than Executive would have enjoyed had the amount of Excise Tax been correctly determined in the first instance, such determination to be made on a basis consistent with the intention of this Section 10.1, which is to make Executive whole on an after-tax basis on account of any Excise Tax (including related interest and penalties) up Paymentto an aggregate amount of two hundred fifty thousand dollars ($250,000). Executive and the Company shall each have the right at all times to have the Accounting Firm review and confirm or revise earlier calculations.

Gross-Up Payment. Notwithstanding anything In the event that (i) the Executive becomes entitled to the contrary in payment and benefits provided under Section 1 of this Agreement (but the "Change of Control Payment") and any of the Change of Control Payment will be subject to the remaining provisions tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision, or (ii) any payments or benefits received or to be received by the Executive pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Employer 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 Excise Tax on the Change of Control Payment and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 8.013, shall be equal to the Change of Control Payment and the Benefit Payments; provided, however, that in determining the amount of the Gross-Up Payment, any Excise Tax on the Change of Control Payment and the Benefit Payments shall be determined using a rate no higher than twenty percent (20%), in . For purposes of determining whether any of the event that Change of Control Payment or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax: (i) any payment, benefit payments or distribution benefits received or to be received by the Company to Executive in connection with a change in control of the Employer or for the benefit Executive's termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”)any other plan, would arrangement or agreement with the Employer, any person whose actions result in change in control or any person affiliated with the Employer or such persons) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, except to the extent that, in the opinion of tax imposed counsel selected by Section 4999 the Board of Directors of the Code Employer, such payments or benefits (in whole or in part) do not constitute parachute payments, or such excess payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code; (ii) the amount of the Change of Control Payment and the Benefit Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Change of Control Payment and the Benefits Payments or (B) the amount of excess parachute payments within the meaning of Sections 280G(b)(1) and (4) (after applying clause (i), above); and (iii) the value of any non-cash benefits or any interest deferred payment or penalties benefit shall be determined by tax counsel, selected by the Board of Directors of the Employer, in accordance with respect to such excise tax the principles of Sections 280G(d)(3) and (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as 4) of the “Excise Tax”), Code. For purposes of determining the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Executive's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax imposed upon all Payments except for is subsequently determined to be less than the Cobalt Equity Payments. Notwithstanding amount taken into account hereunder at the provisions time of termination of the preceding sentenceExecutive's employment, if it the Executive shall repay to the Employer at that time that amount of such reduction in Excise Tax as is finally determined to be determined that Employee is entitled to the portion of the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Up Payment attributable to a particular Payment shall be made 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 such Payment is made; provided, however, that in no event shall of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up Payment be made later than Up Payment), the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee Employer shall make an initial determination as to whether a Grossadditional gross-up Payment is required and payment to the Executive in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of any such Gross-up Paymentexcess is finally determined.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event If it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable you pursuant to the terms this Agreement, including any payments made pursuant to Articles V and VI of this Agreement or otherwise (a “Agreement(a "Base Payment”), ") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”"Code"), the Company then you shall pay be entitled to Employee receive an additional payment (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by you, after payment by Employee the calculation and deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Base Payment and any federal, state, and local taxes and Excise Tax on the Gross-up Up Payment, Employee retains an shall be equal to the Base Payment. In determining this amount, the amount of the Gross-up Up Payment equal attributable to federal income taxes shall be reduced by the Excise Tax imposed upon all Payments except for maximum reduction in federal income taxes that could be obtained by the Cobalt Equity Payments. Notwithstanding the provisions deduction of the preceding sentenceportion of the Gross-Up Payment attributable to state and local income taxes. Finally, if it the Gross-Up Payment shall be determined that Employee is entitled reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-up Up Payment that were not deducted from compensation payable to you. All determinations required to be made under this Section 2.3, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall assumptions to be reduced so that the Parachute Value of all Paymentsutilized in arriving at such determination, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicableexcept as specified above, shall be made by reducing the Company's independent auditor immediately prior to the date of the Change of Control (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and you within fifteen (15) business days after the receipt of notice from you that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by your tax advisor, and if your tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and your tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either you or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to you within five (5) days after the receipt of the determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and you. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments payable will not have been made by the Company that should have been made consistent with the calculations required to be made hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time"Underpayment"). For purposes of reducing In the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation event that you thereafter are required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for the benefit of you along with any Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination Up thereon to relieve you of employment. The Gross-up Payment attributable to a particular Payment shall be made at 100% of the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount cost of any such Gross-up PaymentExcise Tax and other Federal, state and local taxes on the Underpayment.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in A) In the event it shall be determined that any payment, benefit or distribution (or combination thereof) by the Company or one or more trusts established by the Company for the benefit of its employees, to or for the benefit of Employee, Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwise otherwise) (a “Payment”), would be ) is subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed on any upon the Gross-up Up Payment, Employee Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the foregoing provisions of the preceding sentencethis Section 4(i), if it shall be determined that Employee Executive is entitled to the a Gross-up Up Payment, but that the Parachute Value of all Payments Payment does not exceed 110% of the greatest amount that could be paid to Executive without giving rise to any Excise Tax (the “Safe Harbor Amount”), then no Gross-up Up Payment shall be made to Employee Executive and the amounts payable under Article 6 this Agreement shall be reduced so that the Parachute Value of all PaymentsPayment, in the aggregate, equals is reduced to the Safe Harbor Amount. The reduction of the amounts payable under Article 6hereunder, if applicable, shall be made by first reducing Payments payable hereunder the payments under Section 4(h). (including reducing a Payment B) All determinations required to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make 4(i), including whether and when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by an independent accounting firm selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within ten business days of the receipt of notice from Executive that there has been a Payment, or such earlier time as is requested by the Company; provided that for purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rates applicable to individuals in the calendar year in which any such Gross-up Up Payment is to be made and deemed to pay state and local income taxes at the highest effective rates applicable to individuals in the state or locality of Executive’s residence or place of employment in the calendar year in which any such Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account limitations applicable to individuals subject to federal income tax at the highest marginal rates. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 4(i), shall be paid by the Company to Executive (or to the appropriate taxing authority on Executive’s behalf) when the applicable tax is due. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall so indicate to Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that the amount of the Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf of) Executive was lower than the amount actually due (“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 4(i)(C) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of Executive. (C) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of any Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten 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 paid. Executive shall not pay such claim prior to the expiration of the thirty day period following the date on which it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order to effectively contest such claim and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 4(i)(C), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, further, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; 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 the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (D) If, after the receipt by Executive of an amount paid or advanced by the Company pursuant to this Section 4(i), Executive becomes entitled to receive any refund with respect to a Gross-Up Payment, Executive shall (subject to the Company’s complying with the requirements of Section 4(i)(C)) promptly pay to the Company the amount of such refund received (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 4(i)(C), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of the Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event it is determined that any payment, benefit benefit, entitlement or distribution by the Company of any type to or for the benefit of Employeethe Executive, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, by the Company, any person or entity who or which acquires ownership or effective control of the Company, or ownership of a substantial portion of the assets of the Company within the meaning of Section 280G of the Code and the regulations thereunder, or any Affiliate of the Company or of any such person or entity (a the “PaymentTotal Payments”), ) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed together with any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) prior to the date on which any Excise Tax is due (through withholding or otherwise) in an amount such that after payment by Employee the Executive of all income, excise, employment and other taxes on the Gross-Up Payment (and any interest and penalties imposed with respect thereto) the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) All mathematical determinations and determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), in each case which determinations are required to be made under this paragraph, including whether a Gross-Up Payment is required, the amount of such Gross-Up Payment, and amounts relevant to the last sentence of this paragraph, shall be made by an independent accounting firm retained by the Company as selected by the Executive from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm shall provide to the Company and to the Executive its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, within ten (10) days after receipt of notice from the Executive reasonably requesting a Determination or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the basis for such conclusion) and that the Executive has “substantial authority” within the meaning of Treasury Regulation 1.6662-4(d) not to report any Excise Tax on the Executive’s federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination is delivered to the Company or the Executive. Any Determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error, subject to this Section 10. All fees and expenses of the Accounting Firm shall be paid by the Company. (c) As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial Determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company and the Executive should have been made (“Underpayment”), or that Gross-Up Payments will have been made by the Company and the Executive that should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the Company promptly shall pay, or cause to be paid, the amount of such Underpayment to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment; provided, however, that (1) the Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or recovered as a refund from the applicable taxing authorities and (2) this provision shall be interpreted in a manner consistent with the intent of Section 10(a) above, which is to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount that is less than the Overpayment. Any payment to be made to correct an Underpayment or Overpayment, as the case may be, (the “Correcting Payment”) shall be accompanied by an interest payment on the Correcting Payment at an annual rate of 8% for the period from the date of the Gross-Up Payment through the date of payment of the Correcting Payment. (d) In the event it is determined that any payment under Section 4.7 (“Covered Payments”) would be subject to any excise tax, together with any interest or penalties, pursuant to Section 409A of the Code and regulations promulgated thereunder from time to time, or any similar or successor tax (any such excise tax, together with any such interest and penalties, being collectively referred to as a “409A Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “409A Gross-Up Payment”) prior to the date on which such Excise Tax is due to be paid (through withholding or otherwise) an amount such that after payment by the Executive of all income, excise, employment and other taxes thereon (and any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee the Executive retains an amount of the 409A Gross-up Up Payment equal to the 409A Excise Tax imposed upon all Payments except for the Cobalt Equity on such Covered Payments. Notwithstanding If requested by the provisions of the preceding sentenceExecutive, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment relevant determinations shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregatefirst instance by a nationally recognized independent accounting firm retained by the Company, equals with all fees and expenses to be paid by the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment.

Gross-Up Payment. Notwithstanding anything If at any time or from time to the contrary in this Agreement (but subject time, it shall be determined by tax counsel mutually agreeable to the remaining provisions of this Section 8.01), in the event DST and Executive that any payment, payment or other benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable Executive pursuant to the terms of this Agreement or otherwise (a “"Potential Parachute Payment”), would be ") is or will become subject to the excise tax imposed by Section 4999 of the Code or any interest similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or penalties cause to be paid a tax gross-up payment ("Gross-Up Payment") with respect to all such excise tax Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as a) the “amount of the Excise Tax”Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the Company shall pay numerator or which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to Employee an additional payment (a “the Gross-up Up Payment or (ii) .80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment”, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section 409A of the Code shall not be "any similar tax" for purposes of this Agreement. (a) To the extent possible, any payments or other benefits to Executive pursuant to this Agreement shall be allocated as consideration for Executive's entry into the covenants made by him in an amount such that after payment by Employee Paragraph 8(a). (b) Notwithstanding any other provisions of all taxes this Paragraph 9, if the aggregate After-Tax Amount (including any interest or penalties imposed with respect as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to such taxesExecutive, does not exceed 120% of After-Tax Floor Amount (as defined below), including then no Gross-Up Payment shall be made to Executive and the aggregate amount of Potential Parachute Payments payable to Executive shall be reduced (but not below the Floor Amount) to the largest amount which would both (i) not cause any Excise Tax imposed on to be payable by Executive and (ii) not cause any Gross-up Payment, Employee retains an amount Potential Parachute Payments to become nondeductible by DST by reason of Section 280G of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity PaymentsCode (or any successor provision). Notwithstanding the provisions For purposes of the preceding sentence, if it Executive shall be determined that Employee is entitled deemed to be subject to the Grosshighest effective after-up Payment, but that the Parachute Value tax marginal rate of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time)taxes. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment.Agreement:

Gross-Up Payment. Notwithstanding anything If at any time or from time to the contrary in this Agreement (but subject time, it shall be determined by tax counsel mutually agreeable to the remaining provisions of this Section 8.01), in the event DST and Executive that any payment, payment or other benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable Executive pursuant to the terms of this Agreement or otherwise (a “"Potential Parachute Payment”), would ") is or will be taken into account in determining the amount potentially subject to the excise tax imposed by Section 4999 of the Code or any interest similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or penalties cause to be paid a tax gross-up payment ("Gross-Up Payment"). The Gross-Up Payment is intended to compensate Executive for all Excise Taxes payable by Executive with respect to Potential Parachute Payments and all Taxes or Excise Taxes payable by Executive with respect to the Gross-Up Payment, such excise payment to be made within 5 business days after determination of the amount thereof, and in no event later than the date the Executive is required to remit the Excise Taxes to the applicable tax authority. The Gross-Up Payment shall be an amount equal to the product of (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as a) the “amount of the Excise Tax”Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the Company shall pay numerator of which is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any taxes and any Excise Taxes applicable to Employee an additional payment (a “the Gross-up Up Payment or (ii) ..80, it being intended that the Gross-Up Multiple shall in no event exceed five (5.0). If different rates of tax are applicable to various portions of a Gross-Up Payment”, the weighted average of such rates shall be used. Excise Taxes and other penalties under Section 409A of the Code shall not be "any similar tax" for purposes of this Agreement. (a) To the extent possible, any payments or other benefits to Executive pursuant to this Agreement shall be allocated as consideration for Executive's entry into the covenants made by him in an amount such that after payment by Employee Paragraph 8(a). (b) Notwithstanding any other provisions of all taxes this Paragraph 9, if the aggregate After-Tax Amount (including any interest or penalties imposed with respect as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to such taxesExecutive, does not exceed 120% of After-Tax Floor Amount (as defined below), including then no Gross-Up Payment shall be made to Executive and the aggregate amount of Potential Parachute Payments payable to Executive shall be reduced (but not below the Floor Amount) to the largest amount which would both (i) not cause any Excise Tax imposed on to be payable by Executive and (ii) not cause any Gross-up Payment, Employee retains an amount Potential Parachute Payments to become nondeductible by DST by reason of Section 280G of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity PaymentsCode (or any successor provision). Notwithstanding the provisions For purposes of the preceding sentence, if it Executive's highest effective after-tax marginal rate of taxes shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time)applied. For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment.Agreement:

Gross-Up Payment. Notwithstanding anything The term "Gross Up Payment" as used in this Employment Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (1) 100% of any excise tax described in this Section 4.2(g), (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Executive which are related to the contrary in this Agreement timely payment of such excise tax (but subject unless such interest or penalties are attributable to the remaining provisions of this Section 8.01Executive's willful misconduct or gross negligence with respect to such timely payment), in the event that any payment, benefit or distribution . A Gross Up Payment shall be made by the Company promptly after either the Company or the Company 's independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to or for Executive by the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be Company and any other person will result in Executive's being subject to the an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 4.2(g) as the "Code") or any interest or penalties with respect to such an excise tax is assessed against Executive as a result of any such payments and other benefits if Executive takes such action (other than waiving Executive's right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this Section 4.2(g)) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, if the Company or the Company's independent accountants make the determination described in this Section 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive's right to receive a part of such payments or benefits and such part does not exceed $25,000, Executive shall irrevocably waive Executive's right to receive such part if an independent accountant or lawyer retained by Executive and paid by the Company agrees with the determination made by the Company or the Company's independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this Section 4.2(g) shall the Gross-up Payment be made later than in accordance with Section 280G of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the related taxes. The Company reasonably requests that Executive take action to mitigate or challenge, or to mitigate and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of challenge, any such Gross-up Paymenttax or assessment (other than waiving Executive's right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this Section 4.2(g)) and Executive complies with such request, the Company shall provide Executive with such information and such expert advice and assistance from the Company 's independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement Agreement, if any of the payments or benefits which the Executive has the right to receive from the Corporation (but subject the “Payments”) are later determined to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise 409A Tax”), the Company Corporation shall pay to Employee the Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax income tax imposed on any Gross-up Payment, Employee the Executive retains an amount of the Gross-up Payment equal to the Excise 409A Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions The Compensation Committee of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee Board shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Compensation Committee of the Board) within five days of the receipt of such claim. The Corporation shall notify the Executive in writing at least five days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable payment pursuant to the terms of this Agreement agreement or otherwise (a “Payment”), would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code”) or any interest successor or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)similar provision, the Company shall pay to Employee you an additional payment amount (a the “Gross-up Up Payment”) in an amount such that the net amount retained by you after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any Gross-up federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such payments (excluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). For purposes of determining whether any of such payments will be subject to the Excise Tax and the amount of such Excise Tax, Employee retains an any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “excess parachute payments” within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to you such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-up Up Payment, you shall be deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax imposed upon all Payments except for is subsequently determined to be less than the Cobalt Equity Payments. Notwithstanding amount taken into account hereunder at the provisions time of the preceding sentencetermination of your employment, if it you shall be determined that Employee is entitled repay to the Gross-up PaymentCompany, but at the time that the Parachute Value amount of all Payments does not exceed 110% of the Safe Harbor Amountsuch reduction in Excise Tax is finally determined, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced an amount necessary so that the Parachute Value total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of all Payments, such repayment at a rate equivalent to the rate described in the aggregate, equals the Safe Harbor Amount. The reduction Section 280G (d) (4) of the amounts Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of your employment, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through respect to such Payment excess) at the time that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employmentsuch excess is finally determined. The Gross-up Payment attributable to a particular Up Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made paid not later than the end Date of Employee’s taxable year next following Employee’s taxable year in which Employee remits Termination or, if and to the related taxes. The Company and Employee shall make an initial determination extent such payment is not known or calculable as to whether a Gross-up Payment is required and of such date, as soon as the amount of any such Gross-up Paymentis known and calculable.

Gross-Up Payment. Notwithstanding anything If Associate becomes entitled to payments in the nature of compensation, including without limitation the Earned Severance Benefit, all salaries, bonuses, severance pay, fringe benefits and the accelerated vesting of options or other equity-based compensation that constitute a "parachute payment" under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor statute then in effect (collectively, the "Aggregate Change of Control Payments"), then the Company shall pay an additional amount (the "Gross-Up Payment") to Associate at the time specified in the following paragraph. The Gross-Up Payment shall be equal to the contrary in this Agreement (but subject to amount necessary so that the remaining provisions net amount of this Section 8.01)the Aggregate Change of Control Payments retained by Associate, in after subtracting the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the parachute excise tax imposed by Section 4999 of the Code Code, as amended, or any interest successor statute then in effect (the "Excise Tax"), and after also subtracting all federal, state or penalties with respect to such excise tax (such excise local income tax, together with any such interest FICA tax and Excise Tax on the Gross-Up Payment, shall be equal to the net amount of the Aggregate Change in Control Payments that Associate would have retained if no Excise Tax has been imposed and no Gross-Up Payment had been paid. The amount of the Gross-Up Payment shall be determined in good faith by independent accountants or penaltiestax counsel selected by the Company and acceptable to Associate, are hereinafter collectively referred to who shall apply the following assumptions: (i) Associate shall be treated as paying federal income taxes at the “Excise Tax”)highest marginal rate in the calendar year in which the Gross-Up Payment is made, and (ii) Associate shall be treated as paying state and local income taxes at the highest marginal rate(s) in the calendar year in which the Gross-Up Payment is made in the locality of Associate's residence as of the Termination Date, net of the maximum reduction in federal income taxes that could be obtained from deducting those state and local taxes. The Gross-Up Payment shall be made within twenty business days after the effective date of Associate's termination or resignation, provided that if the Gross-Up Payment cannot be determined within that time, the Company shall pay to Employee Associate within that time an additional payment (a “Gross-up Payment”) estimate, determined in an amount such that after payment good faith by Employee the Company, of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an the minimum amount of the Gross-up Up Payment equal and shall pay the remainder (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but in no event later than the 60th day after the effective date of Associate's termination or resignation. If the estimated payment is more than the amount later determined to have been due, the excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be repaid by Associate within five business days after written demand. If the actual Excise Tax imposed upon all Payments except for is more than the Cobalt Equity Payments. Notwithstanding amount that was taken into account in determining the provisions amount of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Up Payment, but that the Parachute Value Company shall make an additional gross-up payment in respect of all Payments does not exceed 110% such excess (plus interest at the rate provided in Section 1274(b)(2)(B) of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zeroCode) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentthe excess is finally determined."

Gross-Up Payment. Notwithstanding anything (i) Anything in this letter to the contrary in this Agreement (but subject to or any termination of the remaining provisions of this Section 8.01)Equity Compensation notwithstanding, in the event it shall be determined that any payment, benefit payment or distribution or benefit received or to be received by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable you pursuant to the terms of this Agreement letter or any other payment or distribution or benefit made or provided by the Company, or any of its subsidiaries and affiliates, to or for your benefit (whether pursuant to this letter or otherwise and determined without regard to any additional payments required under this Paragraph 5) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any interest or penalties are incurred by you with respect to such excise tax (such excise tax, together with any such interest or and penalties, are is hereinafter collectively referred to as the “"Excise Tax”"), the Company then you shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee you of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and the Excise Tax imposed on any upon the Gross-up Up Payment, Employee retains you retain an amount of the Gross-up Up Payment equal to the sum of (x) the Excise Tax imposed upon all the Payments except for and (y) the Cobalt Equity Payments. Notwithstanding the provisions product of any deductions actually disallowed under Section 68 of the preceding sentence, if it shall be determined that Employee is entitled to Code solely as a direct result of the inclusion of the Gross-up Payment, but that Up Payment in your adjusted gross income and the Parachute Value highest applicable marginal rate of all Payments does not exceed 110% of federal income taxation for the Safe Harbor Amount, then no calendar year in which the Gross-up Up Payment shall is to be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time)made. For purposes of reducing determining the Payments amount of the Gross-Up Payment, you shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) Subject to the Safe Harbor Amountprovisions of Paragraphs 5(i) and 5(iii), only amounts payable all determinations required to be made under Article 6 (this Paragraph 5, including whether and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Company's certified public accounting firm (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and you within 15 business days of the receipt of notice from you or the Company that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Paragraph 5, shall be paid by the Company to you within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and you. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Paragraph 5(iii) and you thereafter are required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for your benefit. (iii) You shall notify the Company in writing of any claim by the U.S. Internal Revenue Service (the "IRS") that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after you are informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. You shall not pay such claim prior to the expiration of the 30-day period following the date on which you gave such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies you in writing prior to the expiration of such period that it desires to contest such claim, you shall: (a) give the Company any information reasonably requested by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; and (c) cooperate with the Company in good faith in order effectively to contest such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold you harmless, on an after-tax basis, for any Excise Tax or income and employment tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Paragraph 5(iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct you to pay the tax claimed and sue xxx a refund or contest the claim in any permissible manner, and you shall agree to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs you to pay such claim and sue xxx a refund, the Company shall advance the amount of such payment to you, on an interest-free basis and shall indemnify and hold you harmless, on an after-tax basis, from any Excise Tax or income and employment 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 any extension of the statute of limitations relating to payment of taxes for your taxable year with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and you shall be entitled to settle or contest, as the case may be, any other issue (an "Other Issue") raised by the IRS or any other taxing authority; provided, however, that if, solely as a result of any contest by the Company pursuant to this Paragraph 5(iii), your ability to settle or otherwise resolve any such Other Issue is delayed, then the Company will reimburse you, on an after-tax basis, for any additional interest incurred by you as a result of such delay. (iv) If, after the receipt by you of an amount advanced by the Company pursuant to Paragraph 5(iii), you becomes entitled to receive any refund with respect to such claim, you shall (subject to the Company's complying with the requirements of Paragraph 5(iii) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by you of an amount advanced by the Company pursuant to Paragraph 5(iii), a determination is made that you shall not be entitled to any refund with respect to such claim and the Company does not notify you in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (1) Notwithstanding anything to the contrary in this Agreement above, if any of the compensation payable upon termination of Chairman’s services as provided for above (but subject to the remaining provisions “Payments”) triggers the application of this Internal Revenue Code Section 8.01)280G, in the event that any payment, benefit or distribution by the Company to or makes Chairman liable for the benefit payment of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)) provided for under Section 4999 of the Code, or any other statute or regulation under which Chairman may be penalized as a result of the nature or amount of such compensation, then Company or the acquiring or successor entity of Company shall pay to Employee Chairman an additional payment amount (a the “Gross-up PaymentUp”) in such that the net after-tax amount retained by the Chairman, after deduction of (A) any Excise Tax on the Payments, and (B) any federal, state, local or foreign income, employment or other tax and Excise Tax upon any payment provided for by this section, shall be equal to the Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Chairman calculated as if the Payments were not subject to the Excise Tax. The determination of whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax will be made by Company’s regular independent public accounting firm. (2) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account under this section, Chairman shall repay to Company at the time that the amount of such reduction of Excise Tax is finally determined, an amount such equal to the sum of the following: (i) the amount of the reduction of the Excise Tax, (ii) the amount of the reduction in all other taxes generated by the reduction in the Excise Tax, and (iii) interest on the amount of the sum of (i) and (ii) at the rate provided in Section 1274(b)(2)(B) of the Code. (3) In the event that after payment by Employee of all taxes the Excise Tax is determined to exceed the amount previously taken into account under this section (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up), Company shall make an additional Gross-Up payment in respect to such excess (plus any interest or penalties imposed payable with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zeroexcess) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentexcess is finally determined in accordance with the principles set forth above.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event a) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement between the Executive and the Company or otherwise otherwise, but determined without regard to any additional payments required under this Article 7) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions . (b) The determinations of the preceding sentence, if it shall be determined that Employee is entitled to the whether and when a Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Up Payment shall be made to Employee and the amounts payable is required under this Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, 7 shall be made by reducing Payments payable hereunder (including reducing the Company based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by the Company which shall provide detailed supporting calculations to the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, subject to the extent necessaryExcise Tax, through to or such Payment that would be made last in time)earlier time as is requested by the Company. For purposes of reducing the Payments to the Safe Harbor AmountAny Gross-Up Payment, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced as determined pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment Article 7, shall be made at paid by the time such Company to the Executive within twenty-five (25) days of the receipt of notice from the Executive that there has been a Payment is made; subject to the Excise Tax. Any determinations by the Company shall be binding upon the Executive, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that the Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall promptly provide a similar full gross-up on such additional liability. (c) For purposes of any determinations made by the Company acting under Section 7.1(b): (i) All Payments and Gross-Up Payments with respect to the Executive shall be deemed to be “parachute payments” under Section 280G(b) (2) of the Code and to be “excess parachute payments” under Section 280G(b) (1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that the Company determines in no event good faith that a Payment in whole or in part does not constitute a “parachute payment” or otherwise is not subject to Excise Tax; (ii) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (iii) The Executive shall be deemed to pay federal, state and local income taxes at the actual maximum marginal rate applicable to individuals in the calendar year in which the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question assuming the Executive is subject to applicable phase out rules for the highest income tax payers, notwithstanding the actual income tax rate of the Executive.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit payment or distribution by the Company Employer to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 36(d)) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986 (the “Code”) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxcollectively, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay Executive will be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any income and employment taxes and interest or penalties imposed with respect to such taxes), including any ) and the Excise Tax imposed on any the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for on the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled All determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make 3(d), including whether and when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment, will be made by the independent accounting firm of the Holding Company immediately prior to the Executive’s termination of employment (the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Holding Company, and any determination by the Accounting Firm will be binding upon the Holding Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 3(d), will be paid by the Employer or Holding Company to the Executive within ten days of the receipt of the Accounting Firm’s determination. (i) If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event there is an under-payment of the Gross-Up Payment due to the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm will determine the amount of any such under-payment that has occurred and such amount will be promptly paid by the Employer or the Holding Company to or for the benefit of the Executive.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (but subject 1) 100% of any excise tax described in this Section 11, (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Employee which are related to the remaining provisions timely payment of this Section 8.01such excise tax (unless such interest or penalties are attributable to Employee’s willful misconduct or gross negligence with respect to such timely payment), in the event that any payment, benefit or distribution . A Gross Up Payment shall be made by the Company to or for in a lump sum at the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant Company’s option either directly to the terms of United States Treasury or to Employee after either the Company or the Company’s independent accountants determine that any payments and benefits called for under this Agreement or otherwise (a “Payment”), would be together with any other payments and benefits made available to Employee by the Company and any other person will result in Employee being subject to the an excise tax imposed by Section under § 4999 of the Code or any interest or penalties with respect to such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee’s right to any payments or benefits in excess of the payments or benefits which Employee has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, if the Company or the Company’s independent accountants make the determination described in this Section 11 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee’s right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee’s right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the determination made by the Company or the Company’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this Section 11 shall the Gross-up Payment be made later in accordance with § 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than the end of waiving Employee’s taxable year next following Employee’s taxable year right to any payments or benefits in excess of the payments or benefits which Employee remits the related taxes. The Company has expressly agreed to waive under this Section 11 and Employee complies with such request, the Company shall make an initial determination provide Employee with such information and such expert advice and assistance from the Company’s independent accountants, lawyers and other advisors as to whether a Gross-up Payment is required Employee may reasonably request and the amount of shall pay for all expenses incurred in effecting such compliance and any such Gross-up Paymentrelated fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company or any entity resulting from a Change in Control (or other change in ownership) to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to Employee (the terms of this Agreement or otherwise (a “PaymentPayments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect of 1986, as amended from time to such excise tax time (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Code”) (the “Excise Tax”), then the Company shall pay to Employee an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties Excise Tax) imposed with respect to such taxes), including any Excise Tax imposed on any upon the Gross-up Up Payment, Employee retains an amount of the Gross-up Up Payment equal to the sum of (x) the Excise Tax imposed upon all the Payments except for and (y) the Cobalt Equity Payments. Notwithstanding the provisions products of any deductions disallowed because of the preceding sentence, if it shall be determined that Employee is entitled to inclusion of the Gross-up Up Payment in Employee’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, but that Employee shall be deemed to (A) pay federal income taxes at the Parachute Value highest marginal rates of all Payments does not exceed 110% federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, and (B) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Safe Harbor Amount, then no inclusion of the Gross-up Up Payment in Employee’s adjusted gross income. (ii) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (Underpayment) or Gross-Up Payments are made by the Company which should not have been made (Overpayment), consistent with the calculations required to be made hereunder. In the event that Employee thereafter is required to make payment of any Excise Tax or additional Excise Tax, any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be made promptly paid by the Company to or for the benefit of Employee. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Employee and for his Excise Tax, any such Overpayment (together with interest at the amounts payable under Article 6 rate provided in Section 1274(b)(2)(B) of the Code) shall be reduced so that promptly paid by Employee (to the Parachute Value of all Payments, in extent he has received a refund if the aggregate, equals applicable Excise Tax has been paid to the Safe Harbor Amount. The reduction Internal Revenue Service) to or for the benefit of the amounts payable under Article 6, if applicable, Company. Employee shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuingcooperate, to the extent necessaryhis expenses are reimbursed by the Company, through to such Payment that would be made last with any reasonable requests by the Company in time). For purposes of reducing connection with any contest or disputes with the Payments to Internal Revenue Service in connection with the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExcise Tax.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event it is determined that any payment, benefit benefit, entitlement or distribution by the Company of any type to or for the benefit of Employeethe Executive, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, by the Company, any person or entity who or which acquires ownership or effective control of the Company, or ownership of a substantial portion of the assets of the Company within the meaning of Section 280G of the Code and the regulations there under, or any Affiliate of the Company or of any such person or entity (a the “PaymentTotal Payments”), ) would be subject to the excise tax imposed by Section 4999 of the Code or any similar tax that may hereafter be imposed together with any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) prior to the date on which any Excise Tax is due (through withholding or otherwise) in an amount such that after payment by Employee the Executive of all income, excise, employment and other taxes on the Gross-Up Payment (and any interest and penalties imposed with respect thereto) the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) All mathematical determinations and determinations as to whether any of the Total Payments are “parachute payments” (within the meaning of Section 280G of the Code), in each case which determinations are required to be made under this paragraph, including whether a Gross-Up Payment is required, the amount of such Gross-Up Payment, and amounts relevant to the last sentence of this paragraph, shall be made by an independent accounting firm retained by the Company as selected by the Executive from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm shall provide to the Company and to the Executive its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, within ten (10) days after receipt of notice from the Executive reasonably requesting a Determination or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written statement that such Accounting Firm has concluded that no Excise Tax is payable (including the basis for such conclusion) and that the Executive has “substantial authority” within the meaning of Treasury Regulation 1.6662-4(d) not to report any Excise Tax on the Executive’s federal income tax return. If a Gross-Up Payment is determined to be payable, it shall be paid to the Executive within ten (10) days after the Determination is delivered to the Company or the Executive. Any Determination by the Accounting Firm shall be binding upon the Company and the Executive, absent manifest error, subject to this Section 10. All fees and expenses of the Accounting Firm shall be paid by the Company. (c) As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial Determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments not made by the Company and the Executive should have been made (“Underpayment”), or that Gross-Up Payments will have been made by the Company and the Executive that should not have been made (“Overpayments”). In either such event, the Accounting Firm shall determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the Company promptly shall pay, or cause to be paid, the amount of such Underpayment to or for the benefit of the Executive. In the case of an Overpayment, the Executive shall, at the direction and expense of the Company, take such steps as are reasonably necessary (including the filing of returns and claims for refund), follow reasonable instructions from and procedures established by, the Company, and otherwise reasonably cooperate with the Company to correct such Overpayment; provided, however, that (1) the Executive shall not in any event be obligated to return to the Company an amount greater than the net after-tax portion of the Overpayment that he has retained or recovered as a refund from the applicable taxing authorities and (2) this provision shall be interpreted in a manner consistent with the intent of Section 10(a) above, which is to make the Executive whole, on an after-tax basis, from the application of the Excise Tax, it being understood that the correction of an Overpayment may result in the Executive repaying to the Company an amount that is less than the Overpayment. Any payment to be made to correct an Underpayment or Overpayment, as the case may be, (the “Correcting Payment”) shall be accompanied by an interest payment on the Correcting Payment at an annual rate of 8% for the period from the date of the Gross-Up Payment through the date of payment of the Correcting Payment. (d) In the event it is determined that any payment under Section 4.4 (“Covered Payments”) would be subject to any excise tax, together with any interest or penalties, pursuant to Section 409A of the Code and regulations promulgated thereunder from time to time, or any similar or successor tax (any such excise tax, together with any such interest and penalties, being collectively referred to as a “409A Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “409A Gross-Up Payment”) prior to the date on which such Excise Tax is due to be paid (through withholding or otherwise) an amount such that after payment by the Executive of all income, excise, employment and other taxes thereon (and any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee the Executive retains an amount of the 409A Gross-up Up Payment equal to the 409A Excise Tax imposed upon all Payments except for the Cobalt Equity on such Covered Payments. Notwithstanding If requested by the provisions of the preceding sentenceExecutive, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment relevant determinations shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregatefirst instance by a nationally recognized independent accounting firm retained by the Company, equals with all fees and expenses to be paid by the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment.

Gross-Up Payment. Notwithstanding anything (i) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company Company, or any successor, to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to Employee (the terms of this Agreement or otherwise (a “PaymentPayments”), ) would be subject to the excise tax imposed by Section 4999 or Section 409(A) of the US Internal Revenue Code or any interest or penalties with respect of 1986, as amended from time to such excise tax time (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Code”) (the “Excise Tax”), then the Company shall pay to Employee within 30 days of such determination an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties Excise Tax) imposed with respect to such taxes), including any Excise Tax imposed on any upon the Gross-up Up Payment, Employee retains an amount of the Gross-up Up Payment equal to the sum of (x) the Excise Tax imposed upon all the Payments except for and (y) the Cobalt Equity Payments. Notwithstanding the provisions products of any deductions disallowed because of the preceding sentence, if it shall be determined that Employee is entitled to inclusion of the Gross-up Up Payment in Employee’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, but that Employee shall be deemed to (A) pay federal income taxes at the Parachute Value highest marginal rates of all Payments does not exceed 110% federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, and (B) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Safe Harbor Amount, then no inclusion of the Gross-up Up Payment in Employee’s adjusted gross income. (ii) As a result of the uncertainty in the application of Section 4999 or Section 409(A) of the Code at the time of the determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (Underpayment) or Gross-Up Payments are made by the Company which should not have been made (Overpayment), consistent with the calculations required to be made hereunder. In the event that Employee thereafter is required to make payment of any Excise Tax or additional Excise Tax, any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be made paid by the Company to or for the benefit of Employee and within 30 days of any such required payment by Employee. In the amounts payable under Article 6 event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Employee for his Excise Tax, any such Overpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be reduced so that promptly paid by Employee (to the Parachute Value of all Payments, in extent he has received a refund if the aggregate, equals applicable Excise Tax has been paid to the Safe Harbor Amount. The reduction Internal Revenue Service) to or for the benefit of the amounts payable under Article 6, if applicable, Company. Employee shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuingcooperate, to the extent necessaryhis expenses are reimbursed by the Company, through to such Payment that would be made last with any reasonable requests by the Company in time). For purposes of reducing connection with any contest or disputes with the Payments to Internal Revenue Service in connection with the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExcise Tax.

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary severance benefits described in Sections 5(a) and 5(b) or any other benefits or payments under this Agreement or any other agreement, plan, instrument or obligation in whatever form of the Company or its subsidiaries or affiliates (but subject other than pursuant to this Section) including by reason of the remaining provisions accelerated vesting of this Section 8.01stock options or restricted stock hereunder or thereunder (together, the “Total Benefits”), and in the event that any payment, benefit or distribution by of the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would Total Benefits will be subject to the excise tax imposed by under Code Section 4999 of the Code 4999, including interest, penalties or any interest or penalties with respect to such other excise tax thereon (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee the Executive an additional payment amount (a the “Gross-up Up Payment”) in an amount such that the net amount retained by the Executive, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Total Benefits and any Grossfederal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive 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 agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning the Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel (“Tax Counsel”) selected by the Company’s independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the Base Amount (as defined in the Code), or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-up Payment, Employee retains an cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment equal to Up Payment, the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it Executive shall be determined that Employee is entitled deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment, but that Up Payment is to be made and state and local income taxes at the Parachute Value highest marginal rate of all Payments does not exceed 110% taxation in the state and locality of the Safe Harbor AmountExecutive’s residence on the date of termination, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction net of the amounts payable reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction Section 68 of the amount payable under Article 6 would not result Code in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any itemized deductions allowable to the Executive applies first to reduce the amount of such Gross-up Paymentstate and local income taxes that would otherwise be deductible by the Executive).

Gross-Up Payment. (a) Notwithstanding anything any provision in the Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)contrary, in the event that it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “"Payment”"), would constitute an "excess parachute payment" within the meaning of section 280G of the Code, the Company shall pay Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive after deduction of any excise tax imposed under section 4999 of the Code, and any federal, state and local income tax, FICA and Medicare withholding taxes and excise tax imposed upon the Gross-Up Payment, shall be subject equal to the Payment. For purposes of determining the amount of the Gross-Up Payment, unless Executive specifies that other rates apply, 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 taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on Executive's termination date, net of the reduction in federal income taxes that may be obtained from the deduction of such state and local taxes (calculated by assuming that any reduction under section 68 of the Code in the amount of itemized deductions allocable to Executive applies first to reduce that amount of such state and local income taxes that would otherwise be deductible by Executive). (b) In the event that the excise tax imposed by Section section 4999 of the Code or any interest or penalties with respect is subsequently determined to be less than the amount taken into account hereunder at the time of Executive's termination of employment, Executive shall repay to the Company, at the time that the amount of such reduction in excise tax is finally determined, the portion of the Gross-Up Payment attributable to such excise tax reduction (such plus that portion of the Gross-Up Payment attributable to the excise tax, together with federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by Executive to the extent that such repayment results in a reduction in excise tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the excise tax is determined to exceed the amount taken into account hereunder at the time of Executive's termination of employment (including by reason of any such interest payment the existence or penalties, are hereinafter collectively referred to as amount of which cannot be determined at the “Excise Tax”time of the Gross-Up Payment), the Company shall pay to Employee make an additional payment (a “Gross-up Payment”) Up Payment to Executive in an amount respect to such that after payment excess (plus any interest, penalties or additions payable by Employee of all taxes (including any interest or penalties imposed Executive with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an excess) at the time that the amount of the Gross-up Payment equal such excess is finally determined. (c) Except as otherwise provided herein, all determinations to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, this Section 2.7 shall be made by reducing Payments payable hereunder the tax counsel selected by Executive, at the Company's expense and reasonably acceptable to the Company. (including reducing a d) Notwithstanding anything in this Section 2.7 to the contrary, no Gross Up payment shall be due at any time for any Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s Executive resulting from termination of employment. The Gross-up Payment attributable this Agreement due to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExecutive's death or disability.

Gross-Up Payment. Notwithstanding anything (a) If Executive becomes entitled to the contrary in this Agreement Common Stock payment under Sections 7(c) or 7(d) hereof (but subject to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be which is or becomes subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any interest or penalties with respect to such excise similar tax that may hereafter be imposed) (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee Executive at the time specified below an additional payment amount (a the “Gross-up Payment”) (which shall include, without limitation, reimbursement for any penalties and interest that may accrue in respect of such Excise Tax) such that the net amount retained by Executive, after reduction for any Excise Tax (including any penalties or interest thereon) on the Payment and any federal, state and local income or employment tax and Excise Tax on the Gross-up Payment provided for by this Section, but before reduction for any federal, state, or local income or employment tax on the Payment, shall be equal to the sum of (A) the Payment, and (B) an amount equal to the product of any deductions disallowed for federal, state, or local income tax purposes because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income multiplied by the highest applicable marginal rate of federal, state, or local income taxation, respectively, for the calendar year in which the Gross-up Payment is to be made. For purposes of determining whether the Payment will be subject to the Excise Tax and the amount of such Excise Tax: (i) The Payment shall be treated as “parachute payments” within the meaning of Section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, and except to the extent that, in the written opinion of independent compensation consultants, counsel or auditors of nationally recognized standing (“Independent Advisors”) selected by the Company and reasonably acceptable to Executive, the Payment (in whole or in part) does not constitute a parachute payment, or such excess parachute payment (in whole or in part) represents reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code or are otherwise not subject to the Excise Tax; (ii) The amount of the Payment which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the Payment or (B) the total amount of excess parachute payments within the meaning of Section 280G(b)(1) of the Code (after applying clause (i) above); and (iii) The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Independent Advisors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-up Payment, Executive shall be deemed (A) to pay federal income taxes at the highest marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made; (B) to pay any applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year (determined without regard to limitations on deductions based upon the amount of Executive’s adjusted gross income); and (C) to have otherwise allowable deductions for federal, state, and local income tax purposes at least equal to those disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-up Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined (but, if previously paid to the taxing authorities, not prior to the time the amount of such reduction is refunded to Executive or otherwise realized as a benefit by Executive) the portion of the Gross-up Payment that would not have been paid if such Excise Tax had been applied in initially calculating the Gross-up Payment, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-up 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. The Gross-up Payment provided for above shall be paid on the 30th day (or such earlier date as the Excise Tax becomes due and payable to the taxing authorities) after payment it has been determined that the Payment (or any portion thereof) is subject to the Excise Tax; provided, however, that if the amount of such Gross-up Payment or portion thereof cannot be finally determined on or before such day, the Company shall pay to Executive on such day an estimate, as determined by Employee the Independent Advisors, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code), as soon as the amount thereof can be determined. In the event that the amount of the estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Executive, payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If more than one Gross-up Payment is made, the amount of each Gross-up Payment shall be computed so as not to duplicate any prior Gross-up Payment. The Company shall have the right to control all taxes proceedings with the Internal Revenue Service that may arise in connection with the determination and assessment of any Excise Tax and, at its sole option, the Company may pursue or forego any and all administrative appeals, proceedings, hearings, and conferences with any taxing authority in respect of such Excise Tax (including any interest or penalties imposed with respect to such taxesthereon), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event the Company’s control over any such proceedings shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in limited to issues with respect to which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required would be payable hereunder, and Executive shall be entitled to settle or contest any other issue raised by the Internal Revenue Service or any other taxing authority. Executive shall cooperate with the Company in any proceedings relating to the determination and assessment of any Excise Tax and shall not take any position or action that would materially increase the amount of any such Gross-up PaymentUp Payment hereunder.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)Except as set forth below, in the event it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 9(f) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the foregoing provisions of the preceding sentencethis Section 9(f), (i) if it shall be determined that Employee the Executive is entitled to the a Gross-up Up Payment, but that the Parachute Value Executive, after taking into account the Payments and the Gross-Up Payment, would not receive a net after-tax benefit of all Payments does not exceed 110% at least $100,000 (taking into account both income taxes and any Excise Tax) as compared to the net after-tax proceeds to the Executive resulting from an elimination of the Safe Harbor Amount, then no Gross-up Up Payment shall be made to Employee and a reduction of the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals to an amount (the Safe Harbor "Reduced Amount. The reduction ") such that the receipt of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, not give rise to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amountany Excise Tax, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Up Payment shall be made at to the time Executive and the Payments, in the aggregate, shall be reduced to the Reduced Amount and (ii) in the event that the total Gross-Up Payment payable to the Executive, when combined with all other similar amounts payable by the Company to or on behalf of other officers and employees of the Company and its subsidiaries and affiliates with respect to Excise Taxes imposed on amounts payable to such Payment is made; providedother officers and employees, howeverwould otherwise exceed $10,000,000, that in no event shall the Gross-Up Payment payable to the Executive shall not exceed $10,000,000 multiplied by a fraction, the numerator of which is the Excise Tax payable by the Executive on the Payments (without regard to the Gross-Up Payment) and the denominator of which is the aggregate Excise Taxes payable by the Executive and all such other officers and employees (determined without regard to such gross-up Payment payments). (1) Subject to the provisions of Section 9(f)(2), all determinations required to be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company under this Section 9(f), including whether and Employee shall make an initial determination as to whether when a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by PricewaterhouseCoopers LLP or such other certified public accounting firm reasonably acceptable to the Company as may be designated by the Executive in writing (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. In the event that the Accounting Firm is serving as accountant or auditor for the Company or any individual, entity or group effecting a change in the ownership or effective control of the Company (within the meaning of Section 280G of the Code), the Executive shall appoint another nationally recognized accounting firm that is reasonably acceptable to the Company to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 9(f), shall be paid by the Company to the Executive within five days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 9(f)(1) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. (2) 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 the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than 10 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 it gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 9(f)(2), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (3) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(f)(2), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of Section 9(f)(2)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 9(f)(2), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement Agreement, if any of the payments or benefits which the Executive has the right to receive from the Corporation (but subject the “Payments”) are later determined to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 409A of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise 409A Tax”), the Company Corporation shall pay to Employee the Executive an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax income tax imposed on any Gross-up Payment, Employee the Executive retains an amount of the Gross-up Payment equal to the Excise 409A Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions The Compensation Committee of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee Board shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Corporation's payment of any amount due to the Executive by reason of this Section 1.6 shall be made promptly after the Compensation Committee makes its determination, but in any event no later than December 31 of the year following the year in which the Executive makes his payment of the 409A Tax to the Internal Revenue Service. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Compensation Committee of the Board) within five days of the receipt of such claim. The Corporation shall notify the Executive in writing at least five days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation’s action. If, as a result of the Corporation’s action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. Notwithstanding anything If a Change in Control shall occur during the first two years after the effectiveness of the Merger, the following shall apply: (a) If there is a Termination Other Than for Cause or Resignation for Good Reason within one year after a Change in Control, and if any of the payments or benefits received or to the contrary be received by McCashin in this Agreement connection with a Change in Control or McCashin ceasing tx xxxxx as Chairman (but subject to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this xx xxxx Agreement or otherwise any other plan, arrangement or agreement with the Company) (a “all such payments and benefits, excluding the Gross-Up Payment”), would referred to as the "TOTAL PAYMENTS") will be subject to the excise tax (the "EXCISE TAX") imposed by under Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”"CODE"), the Company shall pay pay, at the time or times specified in Section 3.5(d), to Employee an McCashin additional payment amounts (a “Grossthe "GROSS-up Payment”UP PAYMENT") in an amount such that the nex xxxxxx retained by McCashin, after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any the Total Payments and xxx Xxxeral, state and local income and employment taxes and Excise Tax upon the Gross-up Up Payment, Employee retains an shall be equal to the Total Payments. (b) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (A) all of the Total Payments shall be treated as "parachute payments" (within the meaning of Section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("TAX COUNSEL") selected by those individuals who were member of the Company's Board of Directors immediately prior to the effective date of the Change in Control and reasonably acceptable to McCashin, such payments or benefits (in whole or in part) should not xx xxxxxed by the courts as constituting parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (B) 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) should be treated by the courts as representing reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code), or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. All fees and expenses of the Tax Counsel shall be borne solely by the Company. (c) For purposes of determining the amount of the Gross-up Payment equal Up Payment, McCashin shall be deemed to pay Federal income tax at the highest staxxx xxxxinal income tax rates for the calendar years in which the Gross-Up Payments are to be made and state and local income taxes at the highest stated marginal rates of taxation in the state and locality of McCashin's residence in the calendar year in which the Gross-Up Paymexxx xxx xx be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes, taking into account the reduction in itemized deductions under Section 68 of the Code, but not taking into account alternative minimum taxes. (d) Installments of the Gross-Up Payments shall be paid (including by the Company making a withholding payment to the tax authorities) as the Total Payments are paid to McCashin, unless the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentenceis due at an earlier date, if it shall be determined that Employee is entitled to the in which cxxx, xxx Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Up Payment shall be made at such earlier date, or unless it is initially determined by the Company or the Tax Counsel that the Total Payments are not subject to the Excise Tax but after payment of the Total Payments, it is finally determined following the proceedings described in Section 3.5(e) and (f) that the Total Payments are subject to the Excise Tax, in which case the Gross-Up Payment shall be made upon the imposition upon McCashin of the Excise Tax following the proceedings described in Secxxxx 0.0(e) and (f). (e) McCashin shall notify the Company in writing of any claim by the Intexxxx Xxxenue 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 ten (10) business days after McCashin is informed in writing of such claim and shall describe the xxxxxx xf such claim and the date on which such claim is requested to be paid. McCashin shall not pay such claim prior to the expiration of the thirxx (00) day period following the date on which McCashin gives such notice to the Company (or such shorter period endxxx xx xhe date that any payment of taxes with respect to such claim is due). If the Company notifies McCashin in writing prior to the expiration of such period that it dexxxxx xx contest such claim, McCashin shall: (i) give the Company anx xxxxxxation reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such Payment is madeclaim by an attorney reasonably selected by the Company and reasonably satisfactory to McCashin; (iii) cooperate with the Company ix xxxx xaith in order to effectively contest such claim; and (iv) permit the Company to control any proceedings relating to such claim as provided below; 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 no event connection with such contest and shall indemnify and hold McCashin harmless, on an after-tax basis, for any Excise Tax or other xxx (xxcluding interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. (f) The Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the Grosstaxing authority in respect of such claim and may, at its sole option, either direct McCashin to pay the tax claimed and sue for a refund or contest the cxxxx xx any permissible manner, and XxXashin agrees to prosecute such contest to a determination before axx xxxxxistrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs McCashin to pay such claim and sue for a refund, the Company shall adxxxxx xxe amount of such paymenx xo McCashin on an interest-up Payment be made later than free basis, and shall indemnify and hold McCaxxxx xxxmless, on an after-tax basis, from any Excise Tax or othex xxx (xncluding 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 McCashin is required to extend the end statute of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxeslimitations to enable txx Xxxxxny to contest such claim, McCashin may limit this extension solely to such claim. The Company and Employee Company's xxxxxxx of the contest shall make an initial determination as be limited to whether issues with respect to which a Gross-up Up Payment is required would be payable hereunder and McCashin shall be entitled to settle or contest, as the case may be, xxx xxxxr 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 McCashin's consent if such position or resolution could reasonably be xxxxxxxx to adversely affect McCashin (including any other tax position of McCashin unrelated to txx xxxxxrs covered hereby). (x) Xn the event that McCashin receives a refund of the Excise Tax previously paid, McCashix xxxxx repay to the Company, within five (5) business days foxxxxxxx the receipt of such refund of the Excise Tax previously paid, the amount of such refund plus any interest received by McCashin from the Internal Revenue Service on the refund, and an amouxx xqual to the reduction in McCashin's Federal, state and local income tax assuming that the repaxxxxx xx xeductible, using the assumptions set forth in Section 2.5(c). If, after the receipt by McCashin of an amount advanced by the Company in connection with an Exxxxx Xxx claim, a determination is made that McCashin shall not be entitled to any refund with respect to such Gross-up Paymentclaxx xxx xhe Company does not notify McCashin in writing of its intent to contest the denial of such refunx xxxxx to the expiration of thirty (30) days after such determination, such advance shall be forgiven and shall not be required to be repaid.

Gross-Up Payment. (a) Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)contrary, in the event it is determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employeethe Executive, whether paid, payable, provided, distributed or distributable pursuant to the terms of under this Agreement or otherwise (a “"Payment”"), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Employee the Executive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), taxes and including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Employee ) the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding . (b) Subject to the provisions of the preceding sentencehereof, if it shall be determined that Employee is entitled all determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to including whether a Gross-up Up Payment is required and the amount of any such Gross-Up Payment, shall be made by any nationally recognized firm of certified public accountants (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 60 business days following the occurrence of a Change in Control. If the Accounting Firm has performed services for the entity that caused the Change of Control or any of its Affiliates, the Executive may select an alternative accounting firm from any nationally recognized firm of certified public accountants. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal income tax return. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. When calculating the amount of the Gross-Up Payment, the Executive shall be deemed to pay: (i) Federal income taxes at the highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made; and (ii) any applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive knows of such claim. The notification 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 for at least thirty days after the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company reasonably requests in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest. The Company shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this , the Company shall control all proceedings taken in connection with such contest. The Company, 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. The Company may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall pay the amount of such payment to the Executive and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties, imposed with respect to such payment and with respect to any imputed income with respect to such payment; and provided, further that any extension of the statue of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which should have been made will not have been made ("Underpayment"). In the event that the Company exhausts it remedies pursuant to , and the Executive is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment and the Company shall promptly pay the Executive the amount of such Underpayment. (e) If, after the Company has paid a claim pursuant to , the Executive becomes entitled to a refund with respect to such claim, the Executive shall (subject to the Company's complying with the requirements of ) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon by the taxing authority after deducting any taxes applicable thereto). The amount of such payment shall be considered part of the Gross-Up Payment and subject to gross-up Paymentfor any taxes (including interest or penalties) associated therewith.

Gross-Up Payment. Notwithstanding anything else to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)contrary, in the event it shall be determined that any payment, distribution, benefit or distribution entitlement made or provided by the Company (including any of its subsidiaries or affiliates) to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable the Executive pursuant to the terms of this Agreement or otherwise (a “Base Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Code or similar excise tax (excluding, for the sake of clarity, any additional tax imposed under Section 409A of the Code) that may hereafter be imposed, together with any interest or penalties are incurred by the Executive with respect to any such excise tax (any such excise and other similar tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Employee the Executive an additional payment (a the “Gross-up Up Payment”) in an amount such that the net amount retained by him, after payment by Employee the calculation and deduction of all taxes (including any Excise Tax on the Base Payment and interest or and penalties imposed with respect thereto and any federal, state, and local income taxes and interest and penalties imposed with respect thereto and Excise Tax on the Gross-Up Payment, shall be equal to the Base Payment. In determining this amount, the amount of the Gross-Up Payment attributable to federal income taxes shall be reduced by the maximum reduction in federal income taxes that is obtainable by the Executive on his federal income tax return by the deduction of the portion of the Gross-Up Payment attributable to state and local income taxes. Additionally, the Gross-Up Payment shall be reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-Up Payment that were not deducted from compensation payable to the Executive. All determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such taxesGross-Up Payment, and the assumptions to be utilized in arriving at such determination, except as specified above, shall be made by a national accounting firm reasonably selected by the Board (other than the Company’s independent auditor or an accounting firm that advised a party (other than the Company) with respect to any transaction related to the Change in Control or serves as the independent auditor for any such party) (the “Accounting Firm”), including which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days after the receipt of notice from the Executive that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by the Executive’s tax advisor, and if said tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and said tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within five days after the receipt of the determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and the Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments shall not have been made by the Company that should have been made consistent with the calculations required to be made hereunder (“Underpayment”). In the event that the Executive thereafter is required to make a payment of any Excise Tax imposed on Tax, any such Underpayment, together with any interest and penalties owed by the Executive, shall be promptly paid by the Company to or for the benefit of the Executive. In the event that the Gross-up Payment, Employee retains Up Payment exceeds the amount subsequently determined to be due and the Executive is refunded an amount of the Gross-up Up Payment equal by the Internal Revenue Service, such refund shall be payable by the Executive to the Excise Tax imposed upon all Payments except for Company (together with any interest paid or credited thereon after taxes applicable thereto) within five business days of its receipt by the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExecutive.

Gross-Up Payment. Notwithstanding anything to (A) Anything in any other agreement between the contrary in this Agreement (but subject to Company and the remaining provisions of this Section 8.01)Executive notwithstanding, in the event it shall be determined by the Accounting Firm (as defined below) that any paymentcompensation, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise payable or paid contingent upon the transactions contemplated under the Merger (a within the meaning of Section 280G of the Code) (the “PaymentSeverance Payments”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to (such excise tax (such excise tax, together with any such interest or penalties, are is hereinafter collectively referred to as the “Excise Tax”), the Company then Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in up to an amount such that the net amount retained by Executive, after deduction of any Excise Tax on the Severance Payments, any federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by Employee of all taxes (including this subsection, and any interest or and/or penalties imposed assessed with respect to such taxes)Excise Tax, including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment shall be equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Severance Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event the total amount of all Gross-Up Payments due under this Agreement, including any applicable Underpayments (as defined below), shall not exceed $588,969. For the avoidance of doubt, the Gross-up Up Payment may be less than such full actual amount, such that the Severance Payments may be subject in whole or in part to reduction to reflect the Excise Tax due. (B) Subject to the provisions of Section 1(C), all determinations required to be made later than under this Section 1(B), including the end determination of Employee’s taxable year next following Employee’s taxable year the amount of any Severance Payments, Excise Tax, value of restrictive covenants (which shall be taken into account in which Employee remits the related taxes. The Company accordance with applicable regulations) and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of such Gross-Up Payment, shall be made by Deloitte Tax LLP (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the date Executive’s employment with the Company is terminated (the “Date of Termination), if applicable, or at such earlier time as is reasonably requested by the Company. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the Date of Termination. The initial Gross-Up Payment, if any, as determined pursuant to this Section 1.B (the “Initial Payment”), shall be paid to Executive on or within twenty (20) days following of the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by Executive, the Company shall require the Accounting Firm to furnish the Company and Executive with documentation (including a complete set of calculations and assumptions utilized to make such determination) that can be used to establish a reporting position that failure to report any Excise Tax as payable on Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time the Initial Payment is made, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to Section 1(C) and Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by Executive in connection with the proceedings described in Section 1(C), shall be promptly paid by the Company to or for the benefit of Executive, and in all events no later than the end of the year following the year in which the Executive remits the related tax payments to the Internal Revenue Service (the “IRS”), and in all events all Gross-Up Payments (including all Underpayments, but excluding any additional penalties and interest related to any Underpayment) shall not exceed the dollar amount set forth above in Section 1(A). (C) Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Upon receipt of such notice from the Executive, the Company shall respond within thirty (30) days. Executive shall not pay such claim prior to the expiration of the 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies Executive in writing prior to the expiration of such period that it desires to contest such claim, Executive shall: (1) give the Company any information reasonably requested by the Company relating to such claim, (2) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company (and at the Company’s expense), (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 additional interest and penalties and any reasonable legal and accounting fees and expenses) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 1(C), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to Executive on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (D) If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 1(C), Executive becomes entitled to receive any refund with respect to such claim, Executive shall (subject to the Company’s complying with the requirements of Section 1(C)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Section 1(C), a determination is made that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment and/or interest and penalties required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable payment pursuant to the terms of this Agreement agreement or otherwise (a “Payment”), would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code”) or any interest successor or penalties with respect similar provision, the Companies shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any Excise Tax on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such excise tax payments (such excise tax, together with excluding payments pursuant to this paragraph 9) before payment of any such interest or penalties, are Excise Tax (hereinafter collectively referred to as the “Excise TaxTax Compensation Net Payment”), . For purposes of determining whether any of such payments will be subject to the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on and the amount of such Excise Tax, any Gross-up Paymentpayments or benefits received or to be received by Executive in connection with a Change of Control or Executive’s termination of employment shall be treated as “parachute payments” within the meaning of Section 280G of the Code, Employee retains an and all “excess parachute payments” within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to Executive such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentenceUp Payment, if it Executive shall be determined that Employee deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is entitled to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality in which Executive is taxed on the payments giving rise to the Gross-up Up Payment, but net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Parachute Value Excise Tax is subsequently determined to be less than the amount taken into account hereunder, Executive shall repay to the Companies, at the time that the amount of all Payments does not exceed 110% of the Safe Harbor Amountsuch reduction in Excise Tax is finally determined, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced an amount necessary so that the Parachute Value total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of all Payments, such repayment at a rate equivalent to the rate described in the aggregate, equals the Safe Harbor Amount. The reduction Section 280G (d) (4) of the amounts Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Companies shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through respect to such Payment excess) at the time that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employmentsuch excess is finally determined. The Gross-up Payment attributable to a particular Up Payment shall be made at paid not later than the time such Payment is made; provided, however, that in no event shall date on which the payments giving rise to the Gross-up Up Payment be made later than are made, or, if and to the end extent such payment is not known or calculable as of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination such date, as to whether a Gross-up Payment is required and soon as the amount of any such Gross-up Paymentis known and calculable.

Gross-Up Payment. Notwithstanding anything to (i) In the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)event it shall be finally determined, in the event a proceeding that is non-appealable, that any payment, award, benefit or distribution by the Company Parent (or any of its affiliated entities) to or for the benefit of Employee, the Executive (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 24(k) (a “"Payment”), would be ") is subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") or any corresponding provisions of state or local tax laws, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes or employment taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all the Payments. As a result of the uncertainty in the application of Section 4999 of the Code, it is possible that Gross-Up Payments except which will not have been made by the Parent should have been made ("Underpayment"), consistent with the calculations required to be made hereunder. In the event that the Parent exhausts its remedies pursuant to Section 24(k)(ii) and the Executive thereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Parent to or for the Cobalt Equity Payments. Notwithstanding the provisions benefit of the preceding sentenceExecutive. (ii) The Executive shall notify the Parent in writing of any claim by the Internal Revenue Service that, if it shall be determined that Employee is entitled to successful, would require the payment by the Parent of the Gross-up Up Payment, . Such notification shall be given as soon as practicable but that no later than ten (10) business days after the Parachute Value Executive is informed in writing of all Payments does not exceed 110% such claim and shall apprise the Parent of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee nature of such claim and the amounts payable under Article 6 shall date on which such claim is requested to be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amountpaid. The reduction Executive shall not pay such claim prior to the expiration of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in 30-day period following the order in date on which it gives such Payments would be made (beginning with such Payment that would be made first in time and continuing, notice to the extent necessary, through Parent (or such shorter period ending on the date that any payment of taxes with respect to such Payment that would be made last in timeclaim is due). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of Parent notifies the amount payable under Article 6 would not result Executive in a reduction of the Parachute Value of all Payments writing prior to the Safe Harbor Amountexpiration of such period that it desires to contest such claim, then no amounts payable under Article 6 the Executive shall: (A) give the Parent any information reasonably requested by the Parent relating to such claim; (B) take such action in connection with contesting such claim as the Parent shall be reduced pursuant reasonably request in writing from time to this Section 8.01. The Company’s obligation time, including, without limitation, accepting legal representation with respect to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable such claim by an attorney reasonably selected by the Parent; (C) cooperate with the Parent in good faith in order effectively to a particular Payment shall be made at contest such claim; and (D) permit the time Parent to participate in any proceedings relating to such Payment is madeclaim; provided, however, that the Parent shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in no event connection with such contest and shall indemnify and hold the GrossExecutive harmless, on an after-up Payment be made later than tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the end foregoing provisions of Employee’s this Section 2(b), the Parent shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue 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 Parent shall determine. provided, however, that if the Parent directs the Executive to pay such claim and sue for a refund, the Parent shall advance the amouxx 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 income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; provided, further, that any extension of the statute of limitations relating to payment of taxes for the taxable year next following Employee’s taxable year in of the Executive with respect to which Employee remits such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the related taxes. The Company and Employee Parent's control of the contest shall make an initial determination as be limited to whether issues with respect to which a Gross-up 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. (iii) If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Parent's complying with the requirements of Section 24(k)(ii)) promptly pay to the Parent the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Parent pursuant to Section 24(k)(ii), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Parent does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-up PaymentUp Payment required to be paid.

Gross-Up Payment. Notwithstanding anything in this Agreement to the contrary in this Agreement (but and subject to the remaining provisions of this Section 8.017 (including the Safe Harbor Cap described in Section 7.2), in the event that the Independent Accountants (as defined below) shall determine that any paymentamount paid or distributed to the Executive pursuant to this Agreement (the "Agreement Payments") shall, benefit as a result of a change in the ownership or distribution effective control of the Company or in the ownership of a substantial portion of the assets of the Company, constitute a parachute payment within the meaning of Section 280G of the Code, and the aggregate of such parachute payments and any other amounts paid or distributed to the Executive from any other plans or arrangements maintained by the Company, or by any other member of the same affiliated group (as defined in Section 1504 of the Code determined without regard to Section 1504(b)) which includes the Company (such other payments together with the Agreement Payments shall be referred to or for as the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”"Total Payments"), would more likely than not, in the opinion of the Independent Accountants cause the Executive to be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee the Executive an additional payment amount (a “the "Gross-up Up Payment”) in an amount "), such that the net amount the Executive shall receive after the payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any shall equal the amount which he would have received if the Excise Tax had not been imposed. The Gross-up PaymentUp Payment shall be determined by the Independent Accountants and shall equal the sum of the following: (1) The rate of the Excise Tax multiplied by the amount of the excess parachute payments; (2) Any federal income tax, Employee retains an social security tax, unemployment tax or Excise Tax imposed upon the Executive as a result of the Gross-Up Payment required to be made under this Section 7; and (3) Any state income or other tax imposed upon the Executive as a result of the Gross-Up Payment required to be made under this Section 7. For purposes of determining the amount of the Gross-up Payment equal Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation for individuals in the calendar year in which the Excise Tax imposed upon all Payments except is required to be paid. In addition, the Executive shall be deemed to pay state income taxes at a rate determined in accordance with the following formula: (1 - (highest marginal rate of federal income taxation for individuals)) x (highest marginal rate of income tax in the Cobalt Equity Paymentsstate in which the Executive is domiciled for individuals in the calendar year in which the Excise Tax is required to be paid). Notwithstanding In the event the Executive is subject to the provisions of Section 68 of the preceding sentenceCode, if it the combined federal and state income tax rate determined above shall be determined that Employee is entitled adjusted to reflect any loss in the federal deduction for state income taxes on the Gross-up Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Up Payment shall be made at paid to the time such Payment Executive by the Company on or before the date that the Executive is maderequired to pay the Excise Tax; provided, however, that if the amount of such payment cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the remainder of such payment (together with interest at the rate provided under Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but no later than the thirtieth (30th) day after the date the Executive becomes subject to the payment of the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time the Gross-Up Payment is made, the Executive shall repay to the Company, as applicable, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, federal and state taxes imposed on the Gross-Up Payment being repaid by the Executive, if such repayment results in a reduction in Excise Tax and/or a federal or state tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined, but in no event later than the last day of the calendar year following the calendar year in which the Executive is required to pay the Excise Tax. The parties agree that the intent of this Section 7 is that the Executive shall be reimbursed for the Excise Tax on his excess parachute payments and all taxes on that reimbursement. The intended goal is to place the Executive in the same economic position as if no Excise Tax had been imposed. The Company will retain an independent accounting firm (the "Independent Accountants") acceptable to both the Company and the Executive (other than the Company's regular independent auditors) to calculate the amount of the Gross-up Payment Up Payment. All fees and expenses resulting from the retention of the Independent Accountants shall be paid by the Company. All determinations made later than by the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits Independent Accountants pursuant to this Section 7 shall be binding and conclusive on the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up PaymentExecutive.

Gross-Up Payment. Notwithstanding anything to the contrary The term “Gross Up Payment” as used in this Employment Agreement shall mean a payment to or on behalf of Executive which shall be sufficient to pay (but subject to the remaining provisions 1) 100% of any excise tax described in this Section 8.01§4.2(g), in (2) 100% of any federal, state and local income tax and social security and other employment tax on the event that any payment, benefit or distribution by the Company payment made to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the pay such excise tax imposed by Section 4999 as well as any additional taxes on such payment and (3) 100% of the Code or any interest or penalties assessed by the Internal Revenue Service on Executive which are related to the timely payment of such excise tax (unless such interest or penalties are attributable to Executive’s willful misconduct or gross negligence with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”timely payment), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up A Gross Up Payment shall be made by ICE promptly after either ICE or ICE’s independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to Employee Executive by ICE and any other person will result in Executive’s being subject to an excise tax under § 4999 of the amounts payable under Article 6 Internal Revenue Code of 1986, as amended (which shall be reduced so that referred to in this § 4.2(g) as the Parachute Value “Code”) or such an excise tax is assessed against Executive as a result of all Payments, any such payments and other benefits if Executive takes such action (other than waiving Executive’s right to any payments or benefits in the aggregate, equals the Safe Harbor Amount. The reduction excess of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment payments or benefits which Executive has expressly agreed to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment waive under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable § 4.2(g)) as ICE reasonably requests under the circumstances to a particular Payment shall be made at the time mitigate or challenge such Payment is madeexcise tax; provided, however, if ICE or ICE’s independent accountants make the determination described in this § 4.2(g) and, further, determine that Executive will not be subject to any such excise tax if Executive waives Executive’s right to receive a part of such payments or benefits and such part does not exceed $15,000, Executive shall irrevocably waive Executive’s right to receive such part if an independent accountant or lawyer retained by Executive and paid by ICE agrees with the determination made by ICE or ICE’s independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this §4.2(g) shall the Gross-up Payment be made later than in accordance with § 280G of the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code and any applicable related taxes. The Company regulations (whether proposed, temporary or final) and Employee shall make an initial determination as any related Internal Revenue Service rulings and any related case law and, if ICE reasonably requests that Executive take action to whether a Gross-up Payment is required mitigate or challenge, or to mitigate and the amount of challenge, any such Gross-up Paymenttax or assessment (other than waiving Executive’s right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this §4.2(g)) and Executive complies with such request, ICE shall provide Executive with such information and such expert advice and assistance from ICE’s independent accountants, lawyers and other advisors as Executive may reasonably request and shall pay for all expenses incurred in effecting such compliance and any related fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary severance benefits described in Sections 5(a) and 5(b) or any other benefits or payments under this Agreement or any other agreement, plan, instrument or obligation in whatever form of the Company or its subsidiaries or affiliates (but subject other than pursuant to this Section) including by reason of the remaining provisions accelerated vesting of this Section 8.01equity awards or thereunder (together, the “Total Benefits”), and in the event that any paymentof the Total Benefits will be subject to the excise tax under Code Section 4999, benefit including interest, penalties or distribution other excise tax thereon (the “Excise Tax”), then either (i) the amount of the Total Benefits shall be reduced if the Executive would retain a greater after-tax amount by virtue of such reduction than the Executive would retain if the Excise Tax were imposed (the “Reduction Scenario”) or (ii) if the Reduction Scenario does not apply because the Executive would not retain a greater amount under the Reduction Scenario, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Company Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section 4, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or for benefits received or to be received by the benefit Executive in connection with a Change in Control or the Executive’s termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (any other agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as “Payment”)parachute payments” within the meaning of Section 280G(b)(2) of the Code, would and all “excess parachute payments” within the meaning the Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel (“Tax Counsel”) selected by the Company’s independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the Base Amount (as defined in the Code), or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-cash benefits or any interest deferred payment or penalties benefit shall be determined by the Company’s independent auditors in accordance with respect to such excise tax the principles of Sections 280G(d)(3) and (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as 4) of the “Excise Tax”), Code. For purposes of determining the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to Up Payment, the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it Executive shall be determined that Employee is entitled deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment, but that Up Payment is to be made and state and local income taxes at the Parachute Value highest marginal rate of all Payments does not exceed 110% taxation in the state and locality of the Safe Harbor AmountExecutive’s residence on the date of termination, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction net of the amounts payable reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction Section 68 of the amount payable under Article 6 would not result Code in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any itemized deductions allowable to the Executive applies first to reduce the amount of such Gross-up Paymentstate and local income taxes that would otherwise be deductible by the Executive).

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary in Severance Benefits or any other benefits or payments under this Agreement (but subject other than pursuant to this Section) by reason of the remaining provisions accelerated vesting of this Section 8.01stock options thereunder (together, the "Total Benefits"), and in the event that any paymentof the Total Benefits will be subject to the Excise Tax, benefit or distribution the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Company Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or for benefits received or to be received by the benefit Executive in connection with a Change in Control or the Executive's termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (any other agreement, plan or arrangement with the Company, any Person whose actions result in a “Payment”)Change in Control or any Person affiliated with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, would and all "excess parachute payments" within the meaning the Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-cash benefits or any interest deferred payment or penalties benefit shall be determined by the Company's independent auditors in accordance with respect 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 taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to the Executive applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by the Executive). 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 of the Executive's employment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such excise tax reduction (such excise tax, together with any such interest or penalties, are hereinafter collectively referred plus that portion of the Gross-Up Payment attributable to as the “Excise Tax”, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the portion of the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or federal, state or local income taxes) 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 (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall pay to Employee make an additional payment (a “Gross-up Up Payment”) , determined as previously described, to the Executive in an amount respect to such that after payment excess (plus any interest, penalties or additions payable by Employee of all taxes (including any interest or penalties imposed the Executive with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zeroexcess) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentexcess is finally determined.

Gross-Up Payment. Notwithstanding anything If the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) or the contrary vesting of any stock options held by the Executive accelerate following a Change in this Control pursuant to any stock option Agreement (but subject between the Company and the Executive, whether entered into on or after the date hereof, the Company will cause its independent auditors promptly to review, at the remaining provisions Company's sole expense, the applicability of this Code Section 8.01), in the event that 4999 to any payment, benefit payment or distribution of any type by the Company to or for the benefit of EmployeeExecutive's benefit, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement or otherwise (a “Payment”the "Total Payments"), would be subject to . If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Code or any comparable state or local law, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), the Company shall pay to Employee will make an additional cash payment (a “"Gross-up Up Payment”") in to the Executive within 10 days after such determination equal to an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Employee retains the Executive would retain an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Total Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments foregoing determination, the Executive's tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company's auditors is made prior to the Safe Harbor Amounttime the Executive is required to file a tax return reflecting the Total Payments, only amounts payable under Article 6 (and no other Payments) shall the Executive will be reduced. If entitled to receive from the reduction Company a Gross-Up Payment calculated on the basis of the amount payable under Article 6 would not result Excise Tax the Executive reported in a reduction such tax return, within 10 days after the later of the Parachute Value of all Payments date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Safe Harbor AmountCompany. In all events, then no amounts payable under Article 6 shall if any tax authority determines that a greater Excise Tax should be reduced imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in the Executive's tax return pursuant to this Section 8.01. The Company’s obligation 6(g), the Executive will be entitled to make a receive from the Company the full Gross-up Up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination calculated on the basis of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any Excise Tax determined to be payable by such Gross-up Paymenttax authority within 10 days after the Executive notifies the Company of such determination. 4. The existing Section 6(g) shall be renumbered Section 6(h) and shall be amended in its entirety to read as follows:

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary severance benefits described in Sections 5(a) and 5(b) or any other benefits or payments under this Agreement or any other agreement, plan, instrument or obligation in whatever form of the Company or its subsidiaries or affiliates (but subject other than pursuant to this Section) including by reason of the remaining provisions accelerated vesting of this Section 8.01equity awards or thereunder (together, the “Total Benefits”), and in the event that any paymentof the Total Benefits will be subject to the excise tax under Code Section 4999, benefit including interest, penalties or distribution other excise tax thereon (the “Excise Tax”), then either (i) the amount of the Total Benefits shall be reduced if the Executive would retain a greater after-tax amount by virtue of such reduction than the Executive would retain if the Excise Tax were imposed (the “Reduction Scenario”) or (ii) if the Reduction Scenario does not apply because the Executive would not retain a greater amount under the Reduction Scenario, the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Company Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or for benefits received or to be received by the benefit Executive in connection with a Change in Control or the Executive’s termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (any other agreement, plan or arrangement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) shall be treated as “Payment”)parachute payments” within the meaning of Section 280G(b)(2) of the Code, would and all “excess parachute payments” within the meaning the Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel (“Tax Counsel”) selected by the Company’s independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the Base Amount (as defined in the Code), or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-cash benefits or any interest deferred payment or penalties benefit shall be determined by the Company’s independent auditors in accordance with respect to such excise tax the principles of Sections 280G(d)(3) and (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as 4) of the “Excise Tax”), Code. For purposes of determining the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to Up Payment, the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it Executive shall be determined that Employee is entitled deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment, but that Up Payment is to be made and state and local income taxes at the Parachute Value highest marginal rate of all Payments does not exceed 110% taxation in the state and locality of the Safe Harbor AmountExecutive’s residence on the date of termination, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction net of the amounts payable reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction Section 68 of the amount payable under Article 6 would not result Code in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any itemized deductions allowable to the Executive applies first to reduce the amount of such Gross-up Paymentstate and local income taxes that would otherwise be deductible by the Executive).

Gross-Up Payment. Notwithstanding anything During the Supplement Term, this Section 5.1 shall supersede Section 8.1 of the Employment Agreement, effective on an Effective Date. If at any time or from time to time, it shall be determined by the contrary in this Agreement (Company's independent auditors, but subject only after an Effective Date, that any payment or other benefit to the remaining provisions Executive pursuant to Article II or Article IV of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement Supplement and Amendment or otherwise (a “"Potential Parachute Payment”), would be ") is or will become subject to the excise tax imposed by Section 4999 of the Code or any interest similar tax payable under any United States federal, state, local, foreign or penalties with respect to such excise tax other law (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “"Excise Tax”Taxes"), then the Company shall pay or cause to Employee an additional be paid a tax gross-up payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to all such taxes), including any Excise Tax imposed Taxes and other Taxes on any the Gross-up Up Payment, Employee retains . The Gross-Up Payment shall be an amount equal to the product of (a) The amount of the Excise Taxes (calculated at the effective marginal rates of all federal, state, local, foreign or other law), multiplied by (b) A fraction (the "Gross-up Payment equal to Up Multiple"), the Excise Tax imposed upon all Payments except for numerator or which is one (1.0), and the Cobalt Equity Payments. Notwithstanding denominator of which is one (1.0) minus the provisions lesser of (i) the sum, expressed as a decimal fraction, of the preceding sentence, if it shall be determined that Employee is entitled effective marginal rates of any Taxes and any Excise Taxes applicable to the Gross-up Up Payment or (ii) .80. If different rates of tax are applicable to various portions of a Gross-Up Payment, but that the Parachute Value weighted average of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment such rates shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time)used. For purposes of reducing the Payments this section, Executive shall be deemed to be subject to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction highest effective marginal rate of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employmentTaxes. The Gross-up Payment attributable to a particular Payment shall be made at the time such Up Payment is made; providedintended to compensate Executive for all such Excise Taxes and any other Taxes payable by Executive with respect to the Gross-Up Payment. The Company shall pay or cause to be paid the Gross-Up Payment to Executive within ten (10) days of the calculation of such amount, however, that but in no event shall after the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment Executive is required and to make payment to the amount IRS of any such Gross-up PaymentExcise Taxes.

Gross-Up Payment. Notwithstanding anything 8.1 Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employee, the Employee (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 8) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Company Employee shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes)) including, including without limitation, any income and employment taxes and Excise Tax Tax, imposed on any upon the Gross-up Up Payment but before deduction for any federal, state or local income tax upon the Payment, the Employee retains an amount equal to the sum of (x) the Payment and (y) an amount equal to the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Employee's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-up Up Payment, the Employee shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation (including surcharges) for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those disallowed because of the Excise Tax imposed upon all Payments except for inclusion of the Cobalt Equity Payments. Notwithstanding Gross-Up Payment in the Employee's adjusted gross income. 8.2 Subject to the provisions of the preceding sentenceSection 8.1, if it shall be determined that Employee is entitled all determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make 8, including whether and when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the public accounting firm that is retained by the Company as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Employee within fifteen (15) business days of the receipt of notice from the Company or the Employee that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Employee may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 8 with respect to any Payment shall be made no later than thirty (30) days following the date of such Payment. If the Accounting firm determines that no Excise Tax is payable by the Employee, it shall furnish the Employee with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Employee's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up-Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Employee thereafter is required to make payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(g)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of the Employee. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Employee for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Employee to or for the benefit of the Company. The Employee shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event a) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Employee (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement between the Employee and the Company or otherwise otherwise, but determined without regard to any additional payments required under this Article 7) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “Excise Tax”), then the Company Employee shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by the Employee of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, the Employee retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions . (b) The determinations of the preceding sentence, if it shall be determined that Employee is entitled to the whether and when a Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Up Payment shall be made to Employee and the amounts payable is required under this Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, 7 shall be made by reducing Payments payable hereunder (including reducing the Company based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by the Company which shall provide detailed supporting calculations to the Employee within 15 business days of the receipt of notice from the Employee that there has been a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, subject to the extent necessaryExcise Tax, through to or such Payment that would be made last in time)earlier time as is requested by the Company. For purposes of reducing the Payments to the Safe Harbor AmountAny Gross-Up Payment, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced as determined pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment Article 7, shall be made at paid by the time such Company to the Employee within twenty-five (25) days of the receipt of notice from the Employee that there has been a Payment is made; subject to the Excise Tax. Any determinations by the Company shall be binding upon the Employee, provided, however, if it is later determined that there has been an underpayment of Excise Tax and that the Employee is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the Company shall provide a similar full gross-up on such additional liability. (c) For purposes of any determinations made by the Company acting under Section 7.1(b): (i) All Payments and Gross-Up Payments with respect to the Employee shall be deemed to be “parachute payments” under Section 280G(b) (2) of the Code and to be “excess parachute payments” under Section 280G(b) (1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that the Company determines in no event good faith that a Payment in whole or in part does not constitute a “parachute payment” or otherwise is not subject to Excise Tax; (ii) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (iii) The Employee shall be deemed to pay federal, state and local income taxes at the actual maximum marginal rate applicable to individuals in the calendar year in which the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event a) If it shall be determined that any paymentamount paid, benefit distributed or distribution treated as paid or distributed by the Company to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Article 7) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are being hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all federal, state and local taxes (including any interest or penalties imposed with respect to such taxes), including without limitation, any income taxes (including any interest or penalties imposed with respect thereto) and Excise Tax imposed on any the Gross-up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall will the amount of the Gross-up Up Payment payable pursuant to this Article 7 exceed Five Million Dollars ($5,000,000.00). (b) The determinations of whether and when a Gross-Up Payment is required under this Article 7 shall be made by independent tax counsel (the "Tax Counsel") based on its good faith interpretation of applicable law. The amount of such Gross-Up Payment and the valuation assumptions to be utilized in arriving at such determination shall be made by an independent nationally recognized accounting firm (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within 15 business days of the receipt of notice from the Executive that there has been a Payment, or such earlier time as is requested by the Company. The Tax Counsel and Accounting Firm shall initially be appointed by the Company after consultation in good faith with the Executive and subject to the approval of the Executive (which approval shall not be unreasonably withheld), provided, however, that if the potential amount of the Gross-Up Payment (but for the limit in Section 7.1(a) above) could exceed Five Million Dollars, the Executive shall have the opportunity to appoint a new Tax Counsel and Accounting Firm after consultation in good faith with the Company. If the Tax Counsel and Accounting Firm selected by the Company determine that the amount of the Gross-Up Payment is less than $5 million, but Executive provides an opinion of a second independent Tax Counsel that the Gross-Up Payment (but for the limit in Section 7.1(a) above) could be greater than $5 million, then Executive shall be entitled to appoint the Tax Counsel and the Accounting Firm after consultation in good faith with the Company and subject to the approval of the Company (which approval shall not be unreasonably withheld). All fees and expenses of any Tax Counsels and Accounting Firms referred to above shall be borne by the Company. Any Gross-Up Payment, as determined pursuant to this Article 7, shall be paid by the Company to the Executive within ten (10) days of the receipt of the Accounting Firm's determination. Any determinations by the Tax Counsel and Accounting Firm shall be binding upon the Company and the Executive, provided, however, if it is later than determined that there has been an underpayment of Excise Tax and that Executive is required to make an additional Excise Tax payment(s) on any Payment or Gross-Up Payment, the end Company shall provide a similar full gross-up on such additional liability, subject to the overall $5 million limit set forth in Section 7.1(a) above. (c) For purposes of Employee’s taxable year next following Employee’s taxable any determinations made by any Tax Counsel and Accounting Firm acting under Section 7.1(b) above: (i) All Payments and Gross-Up Payments with respect to Executive shall be deemed to be "parachute Payments" under Section 280G(b)(2) of the Code and to be "excess parachute payments" under Section 280G(b)(1) of the Code that are fully subject to the Excise Tax under Section 4999 of the Code, except to the extent (if any) that such Tax Counsel determines in writing in good faith that a Payment in whole or in part does not constitute a "parachute payment" or otherwise is not subject to Excise Tax; (ii) The value of any non-cash benefits or deferred or delayed payments or benefits shall be determined in a manner consistent with the principles of Section 280G of the Code; and (iii) Executive shall be deemed to pay federal, state and local income taxes at the actual marginal rate applicable to individuals in the calendar year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount made, net of any such Gross-up Paymentapplicable reduction in federal income taxes for any state and local taxes paid on the amounts in question.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event If it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable the Executive pursuant to the terms of this Agreement or otherwise (a “"Base Payment”), ") would be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”"Code"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by him, after payment by Employee the calculation and deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on the Base Payment and any federal, state, and local income taxes and Excise Tax on the Gross-up Up Payment, Employee retains an shall be equal to the Base Payment. In determining this amount, the amount of the Gross-up Up Payment equal attributable to federal income taxes shall be reduced by the Excise Tax imposed upon all Payments except for maximum reduction in federal income taxes that could be obtained by the Cobalt Equity Payments. Notwithstanding the provisions deduction of the preceding sentenceportion of the Gross-Up Payment attributable to state and local income taxes. Additionally, if it the Gross-Up Payment shall be determined that Employee is entitled reduced by income or excise tax withholding payments made by the Company to any federal, state, or local taxing authority with respect to the Gross-up Up Payment that were not deducted from compensation payable to the Executive. All determinations required to be made under this Section 7, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall assumptions to be reduced so that the Parachute Value of all Paymentsutilized in arriving at such determination, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicableexcept as specified above, shall be made by reducing the Company's independent auditor (the "Accounting Firm"), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen business days after the receipt of notice from the Executive that there should be a Gross-Up Payment. The determination of tax liability made by the Accounting Firm shall be subject to review by the Executive's tax advisor, and if said tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and said tax advisor shall jointly designate a nationally recognized public accounting firm, which shall make the determination. All fees and expenses of the accountants and tax advisors retained by either the Executive or the Company shall be borne by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within five days after the receipt of the determination. Any determination by a jointly designated public accounting firm shall be binding upon the Company and the Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that Gross-Up Payments payable shall not have been made by the Company that should have been made consistent with the calculations required to be made hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time"Underpayment"). For purposes of reducing In the Payments to event that the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation Executive thereafter is required to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination payment of employment. The Gross-up Payment attributable to a particular Payment any Excise Tax, any such Underpayment shall be made at promptly paid by the time such Payment is made; provided, however, Company to or for the benefit of the Executive. In the event that in no event shall the Gross-up Up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and exceeds the amount subsequently determined to be due, such excess shall constitute a loan from the Company payable on the fifth day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of any such Gross-up Paymentthe Code).

Gross-Up Payment. Notwithstanding anything The Company shall pay to Executive an additional lump sum payment (the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01"Gross-Up Payment"), in cash, equal to the event sum of the amounts described in Paragraphs A and B (if any), below: A. Executive shall be entitled under this paragraph to the sum of (i) the present value of all of Executive's applicable Federal, state and local taxes arising due to payments or coverage provided under Section 3.03(e), and (ii) an additional amount such that any paymentafter payment by Executive of all of Executive's applicable Federal, benefit or distribution state and local taxes on such additional amount, Executive will retain an amount equal to the total of Executive's applicable Federal, state and local taxes arising due to the payment required pursuant to clause (i) above. For purposes of clause (i) above, present value shall be determined using the appropriate "applicable federal rate" promulgated by the Company to or Treasury Department under Code Section 1274(d) for the benefit month in which the Gross-Up Payment is made, assuming that all taxes will be paid on the due date therefor (without regard to extensions). B. If any portion of Employeethe Severance Benefits or any other payment under this Agreement, whether paidor under any other agreement with, payableor plan of the Company, provided, distributed or distributable pursuant including but not limited to stock options and other long-term incentives (in the terms of this Agreement or otherwise (a “Payment”), aggregate "Total Payments") would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), the Company then Executive shall pay be entitled under this paragraph to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee Executive of all taxes (including any interest or penalties imposed with respect to such of Executive's applicable Federal, state and local taxes), including any Excise Tax Tax, imposed on any Gross-up Paymentupon such additional amount, Employee retains Executive will retain an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for on the Cobalt Equity Total Payments. Notwithstanding The amount determined under this Paragraph B upon the provisions occurrence of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 a Qualifying Event shall be reduced so that by the Parachute Value amount of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable any Gross-Up Payment previously paid to Executive under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time)Section 2.04. For purposes of reducing the Payments to the Safe Harbor AmountParagraphs A and B above, only amounts payable under Article 6 (Executive's applicable Federal, state and no other Payments) local taxes shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made computed at the time such Payment is made; providedmaximum marginal rates, however, that in no event shall taking into account the effect of any loss of personal exemptions resulting from receipt of the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Up Payment.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable payment pursuant to the terms of this Agreement agreement or otherwise (a “Payment”), would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986 (“Code”) or any interest successor or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)similar provision, the Company shall pay to Employee Executive an additional payment amount (a the “Gross-up Up Payment”) in an amount such that the net amount retained by Executive after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any Gross-up federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such payments (excluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). For purposes of determining whether any of such payments will be subject to the Excise Tax and the amount of such Excise Tax, Employee retains an any payments or benefits received or to be received by Executive in connection with a Change of Control or Executive’s termination of employment shall be treated as “parachute payments” within the meaning of Section 280G of the Code, and all “excess parachute payments” within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company’s independent auditors and acceptable to Executive such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentenceUp Payment, if it Executive shall be determined that Employee deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is entitled to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality in which Executive is taxed on the payments giving rise to the Gross-up Up Payment, but net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Parachute Value Excise Tax is subsequently determined to be less than the amount taken into account hereunder, Executive shall repay to the Company, at the time that the amount of all Payments does not exceed 110% of the Safe Harbor Amountsuch reduction in Excise Tax is finally determined, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced an amount necessary so that the Parachute Value total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of all Payments, such repayment at a rate equivalent to the rate described in the aggregate, equals the Safe Harbor Amount. The reduction Section 280G (d) (4) of the amounts Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through respect to such Payment excess) at the time that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employmentsuch excess is finally determined. The Gross-up Payment attributable to a particular Up Payment shall be made at paid not later than the time such Payment is made; provided, however, that in no event shall date on which the payments giving rise to the Gross-up Up Payment be made later than are made, or, if and to the end extent such payment is not known or calculable as of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination such date, as to whether a Gross-up Payment is required and soon as the amount of any such Gross-up Paymentis known and calculable.

Gross-Up Payment. 4.1 Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)contrary, in the event that it shall be determined (as hereinafter provided) that any payment, benefit payment or distribution by the Company to or for the benefit of EmployeeExecutive, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any grants under any long-term incentive plan, stock option, restricted stock, stock appreciation right or similar right, or the lapse or termination of any restriction on, or the vesting or exercisability of, any of the foregoing (a in the aggregate “PaymentTotal Payments”), would be subject subject, but for the application of this Section 4 to the excise tax imposed by Section 4999 of the Code (or any interest or penalties with respect to such excise tax successor provision thereto) (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”) by reason of being considered “contingent on a change in ownership or control” of the Company and as being considered an “excess parachute payment,” both within the meaning of Section 280G of the Code (or any successor provision thereto), then: (a) If the aggregate Parachute Value (as defined below) of the Total Payments is 110% or less than the Safe Harbor Amount (as defined below), then the Severance Compensation payable to Executive pursuant to Section 3 shall be reduced to such an amount so that Total Payments will be capped to the extent necessary so that Total Payments will not exceed the Safe Harbor Amount and no Excise Tax will be triggered. (b) If, however, the aggregate Parachute Value of the Total Payments exceeds 110% of the Safe Harbor Amount, then the Severance Compensation and Severance Continuation Benefits payable to Executive pursuant to Section 3 shall not be reduced as provided for under Section 4.1(a), but instead, the full amount of Severance Compensation, Severance Continuation Benefits and Total Payments shall be paid to Executive. Further, to the extent the Total Payments are determined to exceed 110% of the Safe Harbor Amount and to be subject to the Excise Tax, the Company shall pay as soon as reasonably practicable to Employee Executive an additional payment amount (a “Gross-up Payment”) to the extent necessary to place Executive in an amount the same after-tax position as Executive would have been in had no such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax been imposed on upon any portion of the Total Payments; provided, however, that any Gross-up PaymentPayment shall be paid to Executive no later than the end of Executive’s taxable year that follows the taxable year in which Executive pays the applicable Excise Tax. For purposes of this Agreement, Employee retains an amount the “Safe Harbor Amount” is the maximum aggregate Parachute Value of the Gross-up Payment equal Total Payments that may be paid or distributed to Executive without triggering the Excise Tax imposed upon all Payments except for because such amount is less than three times Executive’s “base amount,” within the Cobalt Equity Payments. Notwithstanding the provisions meaning of Section 280G of the preceding sentenceCode. The “Parachute Value” of the Total Payments is the aggregate present value as of the date of the Change in Control of that portion of the Total Payments that constitutes “parachute payments,” within the meaning of Section 280G of the Code. The calculation of the Total Payments, if it shall be determined that Employee is entitled to the potential Excise Tax liability, the Safe Harbor Amount, the Parachute Value, and the Gross-up Payment, but that as well as the Parachute Value of all Payments does not exceed 110% of method in which the Safe Harbor Amount, then no Gross-up Payment shall reduction in Severance Compensation payable to Executive pursuant to Section 3 will be made to Employee and the amounts payable applied under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicableSection 4.1(a), shall be made conducted and determined by reducing Payments payable hereunder (including reducing a Payment to zero) in national accounting firm selected by the order in which such Payments would be made (beginning with such Payment that would be made first in time Company and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) its determinations shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of binding upon all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is madeparties; provided, however, that if the calculation of such national accounting firm will result in a reduction of any of the Severance Compensation payable to Executive pursuant to Section 3, prior to issuance of the final and binding determination, Executive shall be given a reasonable opportunity to (i) review and comment upon all of the material, information and documentation provided to the national accounting firm by the Company, and (ii) offer such input as Executive may determine to be helpful to the national accounting firm’s preliminary determination. 4.2 If, notwithstanding the determination of the national accounting firm or any subsequent reduction in any of the Severance Compensation payable to Executive pursuant to Section 3, any portion of the Total Payments are determined by the Internal Revenue Service to result in an “excess parachute payment” within the meaning of Section 280G of the Code that is subject to the Excise Tax (or any similar tax or assessment), the amounts payable to Executive by the Company shall be increased to the extent necessary to place Executive in the same after-tax position as Executive would have been in had no event such tax been imposed on any such amount paid or payable to Executive under this Agreement. 4.3 If in any future year a determination is made that the reduction described in Section 4.1(a) was not required, then payment of such reduced amount shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentsoon as administratively feasible.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in the event that If any payment, benefit or distribution by the Company 280G Payment to or for in respect of the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant Executive is determined to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “the “Gross-up Up Payment”) in an amount such that that, after payment by Employee the Executive of all taxes (including and any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity 280G Payments. Notwithstanding the provisions of the preceding sentence, if it The Accounting Firm shall be determined that Employee is entitled make all determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make 7(a), including whether and when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Up Payment is made; providedrequired, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination (except that the Executive’s Federal and state income taxes shall be assumed to be at the maximum marginal rates). All fees and expenses of the Accounting Firm shall be borne solely by the Company. An allocable portion of the Gross-Up Payment, computed assuming all of the 280G Payments constitute excess parachute payments under, and allocated to each payment in accordance with, Section 280G of the Code, shall be paid to the Executive concurrently with each 280G Payment, unless the Company at the same time as such 280G Payment provides the Executive with the Accounting Firm’s opinion that the Executive will not incur any Excise Tax on any part or all of the 280G Payments. Any such opinion shall be based upon the regulations under Sections 280G and 4999 of the Code and shall be supported with substantial authority as defined in Section 6661 of the Code and the regulations thereunder. If any such opinion applies only to part of the 280G Payments, the Company shall pay the Executive the Gross-Up Payment with respect to that part of the Payments not covered by the opinion. The Executive agrees (unless requested otherwise by the Company) to use reasonable efforts to contest in good faith any subsequent determination by the Internal Revenue Service that the Executive owes an amount of Excise Tax greater than the amount determined above; provided, that the Executive shall be entitled to reimbursement by the Company of all fees and expenses reasonably incurred by the Executive in contesting such determination. In the event the Internal Revenue Service or any court of competent jurisdiction determines that the Executive owes an amount of Excise Tax that is either greater or less than the amount previously taken into account in the Gross-Up Payment paid under this Section 7(a), the Company shall promptly pay to the Executive, or the Executive shall promptly repay to the Company, as the case may be, the amount of resulting excess or shortfall in the Gross-Up Payment. Any payment that the Company is required to make to the Executive pursuant to the preceding sentence shall include an additional amount such that after payment by the Executive of all of the Executive’s applicable Federal, state and local taxes (and any interest or penalties imposed with respect to such taxes) on such additional amount, the Executive shall retain an amount equal to the total of the Executive’s applicable Federal, state and local taxes arising due to the later 280G Payment. Payment of any Gross-Up Payment shall in any event be made by December 31 following the taxable year in which the related Excise Tax was incurred.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event that (i) Xxxxxxxxx becomes entitled to any payment, benefit benefits or distribution by payments in connection with the Company to or for the benefit termination of EmployeeXxxxxxxxx'x employment, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, including without limitation the Severance Benefits (a “Payment”collectively, the "Total Benefits"), would and (ii) any of the Total Benefits will be subject to the excise Excise Tax, RAI shall pay to Xxxxxxxxx an additional amount (the "Gross-Up Payment") such that the net amount retained by Xxxxxxxxx, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income taxes, Excise Tax, and FICA and Medicare withholding taxes upon the payment provided for by this paragraph 8(a), shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, the amount of the Total Benefits that shall be treated as subject to the Excise Tax shall be equal to the amount of the Total Benefits reduced by the amount of such Total Benefits that, in the opinion of tax imposed counsel selected by Xxxxxxxxx, at RAI's expense and reasonably acceptable to RAI ("Tax Counsel"), are not excess parachute payments (within the meaning of Section 4999 28OG(b)(1) of the Code). (b) For purposes of this Section 8, Xxxxxxxxx shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Excise Tax is (or would be) payable and state and local income taxes at the highest marginal rate of taxation in the state and locality of Xxxxxxxxx'x residence on the Date of Termination, net of the reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Section 68 of the Code in the amount of itemized deductions allowable to Xxxxxxxxx applies first to reduce the amount of such state and local income taxes that would otherwise be deductible by Xxxxxxxxx). Except as otherwise provided herein, all determinations required to be made under this Section 8 shall be made by Tax Counsel. (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 of Xxxxxxxxx'x employment, Xxxxxxxxx shall repay to RAI, 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, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by Xxxxxxxxx to the extent that such repayment results in a reduction in Excise Tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Xxxxxxxxx'x employment (including by reason of any interest payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), RAI shall make an additional Gross-Up Payment to Xxxxxxxxx in respect of such excess (plus any interest, penalties or additions payable by Xxxxxxxxx with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”excess) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Paymentexcess is finally determined.

Gross-Up Payment. Notwithstanding anything to the contrary The term "Gross Up Payment" as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (but subject 1) 100% of any excise tax described in this Section 11, (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Employee which are related to the remaining provisions timely payment of this Section 8.01such excise tax (unless such interest or penalties are attributable to Employee's willful misconduct or gross negligence with respect to such timely payment), in the event that any payment, benefit or distribution . A Gross Up Payment shall be made by the Company promptly after either the Company or the Company's independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to or for Employee by the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be Company and any other person will result in Employee being subject to the an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 11 as the "Code") or any interest or penalties with respect to such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee's right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this Section 11) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, if the Company or the Company's independent accountants make the determination described in this Section 11 and, further, determine that Employee's Initials: 9 --------------- Employee will not be subject to any such excise tax if Employee waives Employee's right to receive a part of such payments or benefits and such part does not exceed $10,000, Employee shall irrevocably waive Employee's right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the determination made by the Company or the Company's independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this Section 11 shall the Gross-up Payment be made later in accordance with Section 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than waiving Employee's right to any payments or benefits in excess of the end of Employee’s taxable year next following Employee’s taxable year in payments or benefits which Employee remits the related taxes. The Company has expressly agreed to waive under this Section 11) and Employee complies with such request, the Company shall make an initial determination provide Employee with such information and such expert advice and assistance from the Company's independent accountants, lawyers and other advisors as to whether a Gross-up Payment is required Employee may reasonably request and the amount of shall pay for all expenses incurred in effecting such compliance and any such Gross-up Paymentrelated fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything If the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) or the contrary vesting of any stock options held by the Executive accelerate following a Change in this Agreement (but subject Control pursuant to any stock option agreement or certificate, whether entered into on or after the remaining provisions date hereof, the Parent Corporation will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of this Code Section 8.01), in the event that 4999 to any payment, benefit payment or distribution of any type by the Company to or for the benefit of EmployeeExecutive’s benefit, whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement Agreement, any stock option agreement or otherwise (a the “PaymentTotal Payments”), would be subject to . If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Code or any comparable state or local law, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee will make an additional cash payment (a “Gross-up Up Payment”) in to the Executive within 10 days after such determination equal to an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax Tax, imposed on any upon the Gross-up Up Payment, Employee retains the Executive would retain an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Total Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments foregoing determination, the Executive’s tax rate will be deemed to be the highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the Safe Harbor Amounttime the Executive is required to file a tax return reflecting the Total Payments, only amounts payable under Article 6 (and no other Payments) shall the Executive will be reduced. If entitled to receive from the reduction Company a Gross-Up Payment calculated on the basis of the amount payable under Article 6 would not result Excise Tax the Executive reported in a reduction such tax return, within 10 days after the later of the Parachute Value of all Payments date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Safe Harbor AmountCompany. In all events, then no amounts payable under Article 6 shall if any tax authority determines that a greater Excise Tax should be reduced imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 8.01. The Company’s obligation 6(g), the Executive will be entitled to make a receive from the Company the full Gross-up Up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination calculated on the basis of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any Excise Tax determined to be payable by such Gross-up Paymenttax authority within 10 days after the Executive notifies the Company of such determination.

Gross-Up Payment. Notwithstanding anything to a. To the contrary in this Agreement extent that (but subject to i) the remaining provisions payment of any Severance Payment under Paragraph 18 of this Section 8.01)Agreement, in (ii) vesting under the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms applicable Restricted Stock Agreements provided under Paragraph 6 of this Agreement Agreement, or otherwise (a iii) the payment of any other benefit within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “PaymentCode”)) under any other agreement (collectively, “Payments”) would be subject to the excise tax result in any taxes being imposed by against Executive under Section 4999 of the Code or (the “Excise Tax”), or, to the extent that the reimbursement of any Relocation Expenses under Paragraph 9 hereof would result in any taxes being imposed against Executive under the Code (“Taxes”), then the Company shall pay, and Executive will be entitled to receive, a payment (the “Gross-Up Payment”) in an amount equal to such Excise Tax and/or Taxes, plus an amount as shall be required to hold Executive harmless from any tax liability relating to the payment of such Gross-Up Payment. To the extent Executive incurs any interest or penalties with respect to such excise Excise Taxes or Taxes (other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise TaxExpenses”), then the Company shall pay reimburse Executive for such Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to Employee any such Expenses, and the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to reimbursement is not subject to liquidation or exchange for another benefit. To the extent the reimbursement by the Company of any Expenses is taxable to Executive, such taxable amount shall be subject to an additional payment (a “Gross-up Payment”) Up Payment in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect equal to such taxes), including tax liability plus an amount as shall be required to hold Executive harmless from any Excise Tax imposed on any tax liability relating to the payment of such Gross-up Up Payment, Employee retains an amount of . This Paragraph 22 in no way alters or amends the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make pay gross-up amounts under the Prior Agreement in connection with the grant to Executive of Restricted Shares under the Restricted Stock Agreement dated as of April 17, 2007 between Executive and the Company. b. The Company shall bear any expense necessary in determining whether a Gross-up Up Payment under is required pursuant to Paragraph 22(a) of this Section 8.01 shall not be conditioned upon Employee’s termination of employmentAgreement. The Gross-up Payment attributable to a particular Payment Up Payment, if any, shall be made at paid by the time such Payment is made; providedCompany to Executive within five (5) days after remittance by the Executive to the Internal Revenue Service of the applicable Excise Tax, however, that in no event shall Taxes and/or taxes related to the Gross-up Payment be made later than the end reimbursement of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required Expenses and the amount submission to the Company of any appropriate documentation of such Gross-up Paymentremittance as may be required by the Company.

Gross-Up Payment. Notwithstanding anything (a) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, benefit payment or distribution by the Company to or for the benefit of Employee, the Employee (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 3.24) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) or any interest or penalties are incurred by the Employee with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Employee shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by the Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, the Employee retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled Payment. (b) All determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make 3.24, including whether and when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by the Accounting Firm which shall provide detailed supporting calculations both to the Company and the Employee within 15 business days after the receipt of notice from the Employee that there has been a Payment, or such earlier time as is requested by the Company. The determination of tax liability made by the Accounting Firm shall be subject to review by the Employee’s tax advisor, and, if the Employee’s tax advisor does not agree with the determination reached by the Accounting Firm, then the Accounting Firm and the Employee’s tax advisor shall jointly designate a nationally recognized public accounting firm which shall make the determination. All fees and expenses of the accountants and tax advisors retained by both the Employee and the Company shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 3.24, shall be paid by the Company to the Employee within five days after the receipt of the determination. Any determination by such jointly designated public accounting firm shall be binding upon the Company and the Employee. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination hereunder, it is possible that a Gross-Up Payment will not have been made by the Company that should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Employee hereafter is required to make a payment of any Excise Tax, any such Underpayment shall be promptly paid by the Company to or for the benefit of the Employee. Upon notice by the Employee of any audit or other proceeding that may result in a liability to the Company hereunder, the Employee shall promptly notify the Company of such audit or other proceeding; and the Company may, at its option, but solely with respect to the item or items that relate to such potential liability, choose to assume the defense of such audit or other proceeding at its own cost, provided that (i) the Employee shall cooperate with the Company in such defense and (ii) the Company will not settle such audit or other proceeding without the consent of the Employee (such consent not to be unreasonably withheld). The highest effective marginal tax rate (determined by taking into account any reduction in itemized deductions and/or exemptions attributable to the inclusion of the additional amounts payable under this Section 3.24 in the Employee’s adjusted gross or taxable income) based upon the state and locality where the Employee is resident at the time of payment of such amounts will be used for purposes of determining the federal and state income and other taxes with respect thereto.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement Agreement, if any of the payments or benefits which the Executive has the right to receive from the Corporation (but subject the "Payments") are later determined to the remaining provisions of this Section 8.01), in the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be subject to the excise tax imposed by Section 4999 409A of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise "409A Tax”"), the Company Corporation shall pay to Employee the Executive an additional payment (a “"Gross-up Payment”") in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax income tax imposed on any Gross-up Payment, Employee the Executive retains an amount of the Gross-up Payment equal to the Excise 409A Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee Compensation Committee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any such Gross-up Payment. The Executive shall notify the Corporation immediately in writing of any claim by the Internal Revenue Service which, if successful, would require the Corporation to make a Gross-up Payment (or a Gross-up Payment in excess of that, if any, initially determined by the Compensation Committee) within five days of the receipt of such claim. The Corporation shall notify the Executive in writing at least five days prior to the due date of any response required with respect to such claim if it plans to contest the claim. If the Corporation decides to contest such claim, then the Executive shall cooperate fully with the Corporation in such action; provided, however, the Corporation shall bear and pay all costs and expenses (including additional interest and penalties) incurred in connection with such action and shall indemnify and hold the Executive harmless, on an after-tax basis, for any 409A Tax or income tax, including interest and penalties with respect thereto, imposed as a result of the Corporation's action. If, as a result of the Corporation's action with respect to a claim, the Executive receives a refund of any amount paid by the Corporation with respect to such claim, then the Executive shall promptly pay such refund to the Corporation. If the Corporation fails to timely notify the Executive whether it will contest such claim or the Corporation determines not to contest such claim, then the Corporation shall immediately pay to the Executive the portion of such claim, if any, which it has not previously paid to the Executive.

Gross-Up Payment. Notwithstanding anything (a) Anything in this Agreement to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01)notwithstanding, in the event it shall be determined that any payment, distribution or acceleration of vesting of any award or benefit or distribution by the Company or its Subsidiaries to or for the benefit of Employee, the Executive (whether paid, paid or payable, provided, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise otherwise) (a “"Payment”), ") would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “"Gross-up Up Payment”") in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes)) imposed upon the Gross-Up Payment, including any the Executive retains an amount equal to the sum of (i) the Excise Tax imposed on upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-up Payment, Employee retains an Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-up Payment equal Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the Excise Tax imposed upon all Payments except highest applicable marginal rates of federal income taxation for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to calendar year in which the Gross-up PaymentUp Payment is to be made, but that (2) pay applicable state and local income taxes at the Parachute Value highest applicable marginal rate of all Payments does not exceed 110% taxation for the calendar year in which the Gross-Up Payment is to be made, net of the Safe Harbor Amount, then no maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up Up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor AmountExecutive's adjusted gross income. The reduction payment of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Up Payment under this Section 8.01 3(a) shall not in no event be conditioned upon Employee’s the Executive's termination of employment. The Gross-up Payment attributable employment or the receipt of severance benefits under this Agreement. (b) Subject to a particular Payment shall the provisions of Section 3(a), all determinations required to be made at the time such Payment is made; providedunder this Section 3, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company including whether and Employee shall make an initial determination as to whether when a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Xxxxxx Consulting Inc. (the "Accounting Firm") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as a consultant for the individual, entity or group effecting the Change in Control, the Executive may appoint a nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 3 with respect to any Payments shall be made no later than thirty (30) days following the date of such Payment. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Company to or for the benefit of the Executive. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the Excise Tax. (c) Notwithstanding Section 6 hereof, this Section 3 shall survive the termination of this Agreement unless the Executive's employment was terminated by the Company for Cause.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable payment pursuant to the terms of this Letter Agreement or otherwise (a “Payment”), would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code") or any interest successor or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)similar provision, the Company shall pay to Employee you an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by you after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any Gross-up federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such payments (excluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax and the amount of such Excise Tax, Employee retains an any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to you such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-up Up Payment, you shall be deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of your residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax imposed upon all Payments except for is subsequently determined to be less than the Cobalt Equity Payments. Notwithstanding amount taken into account hereunder at the provisions time of the preceding sentencetermination of your employment, if it you shall be determined that Employee is entitled repay to the Gross-up PaymentCompany, but at the time that the Parachute Value amount of all Payments does not exceed 110% of the Safe Harbor Amountsuch reduction in Excise Tax is finally determined, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced an amount necessary so that the Parachute Value total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of all Payments, such repayment at a rate equivalent to the rate described in the aggregate, equals the Safe Harbor Amount. The reduction Section 280G (d) (4) of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment Code. In the event that the Excise Tax is determined to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of exceed the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made taken into account hereunder at the time such Payment is made; providedof the termination of your employment, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a additional Gross-up Up Payment is required and in respect of such excess (plus any interest payable with respect to such excess) at the time that the amount of any such Gross-up Paymentexcess is finally determined.

Gross-Up Payment. Notwithstanding anything In the event that the Executive becomes entitled to the contrary in Severance Benefits or any other benefits or payments under this Agreement (but subject other than pursuant to this Section) by reason of the remaining provisions accelerated vesting of this Section 8.01stock options thereunder (together, the "Total Benefits"), and in the event that any paymentof the Total Benefits will be subject to the Excise Tax, benefit or distribution the Company shall pay to the Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Company Executive, after deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Tax and FICA and Medicare withholding taxes upon the payment provided for by this Section, shall be equal to the Total Benefits. For purposes of determining whether any of the Total Benefits will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or for benefits received or to be received by the benefit Executive in connection with a Change in Control or the Executive's termination of Employee, employment (whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (any other agreement, plan or arrangement with the Company, any Person whose actions result in a “Payment”)Change in Control or any Person affiliated with the Company or such Person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, would and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the excise Excise Tax, unless in the opinion of tax imposed counsel ("Tax Counsel") selected by the Company's independent auditors and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G(b)(4) of the Code in excess of the Base Amount, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Benefits which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Benefits reduced by the amount of such Total Benefits that in the opinion of Tax Counsel are not parachute 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 non-cash benefits or any interest deferred payment or penalties benefit shall be determined by the Company's independent auditors in accordance with respect to such excise tax the principles of sections 280G(d)(3) and (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as 4) of the “Excise Tax”), Code. For purposes of determining the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to Up Payment, the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it Executive shall be determined that Employee is entitled deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up Payment, but that Up Payment is to be made and state and local income taxes at the Parachute Value highest marginal rate of all Payments does not exceed 110% taxation in the state and locality of the Safe Harbor AmountExecutive's residence on the Date of Termination, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction net of the amounts payable reduction in federal income taxes which could be obtained from deduction of such state and local taxes (calculated by assuming that any reduction under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction Section 68 of the amount payable under Article 6 would not result Code in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Payment is required and the amount of any itemized deductions allowable to the Executive applies first to reduce the amount of such Gross-up Paymentstate and local income taxes that would otherwise be deductible by the Executive).

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, payment or benefit ----------------- received or distribution to be received by the Executive in connection with a Change in Control of the Company to or for the benefit termination of Employeethe Executive's employment, whether paid, payable, provided, distributed such payments or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control of the Company or any person affiliated with the Company or such person (a “Payment”all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code or any interest or penalties with respect to such excise tax of 1986, as amended (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”"Code"), the Company shall pay to Employee an the Executive such additional payment amounts (a “the "Gross-up Up Payment”") as may be necessary to place the Executive in an amount such the same after-tax position as if no portion of the Total Payments had been subject to the Excise Tax. In the event that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any the Excise Tax imposed on any Gross-up Paymentis subsequently determined to be less than the amount taken into account hereunder, Employee retains an the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-up Up Payment equal attributable to the reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to on the Gross-up PaymentUp Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or federal, but state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Parachute Value of all Payments does not Excise Tax is determined to exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable amount taken into account hereunder (including reducing a Payment to zero) in by reason of any payment the order in existence of which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall cannot be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made determined at the time such Payment is made; provided, however, that in no event shall of the Gross-up Payment be made later than Up Payment, the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a additional Gross-up Up Payment is required and in respect of such excess (plus any interest, penalties =============================================================================== 12 or additions payable by the Executive with respect of such excess) at the time that the amount of any such Gross-up Payment.excess if finally

Gross-Up Payment. Notwithstanding anything to the contrary The term "Gross Up Payment" as used in this Agreement shall mean a payment to or on behalf of Employee which shall be sufficient to pay (but subject 1) 100% of any excise tax described in this Section 8.05, (2) 100% of any federal, state and local income tax and social security and other employment tax on the payment made to pay such excise tax as well as any additional taxes on such payment and (3) 100% of any interest or penalties assessed by the Internal Revenue Service on Employee which are related to the remaining provisions timely payment of this Section 8.01such excise tax (unless such interest or penalties are attributable to Employee's willful misconduct or gross negligence with respect to such timely payment), in the event that any payment, benefit or distribution . A Gross Up Payment shall be made by the Company promptly after either the Company or the Company's independent accountants determine that any payments and benefits called for under this Employment Agreement together with any other payments and benefits made available to or for Employee by the benefit of Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be Company and any other person will result in Employee being subject to the an excise tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (which shall be referred to in this Section 8.05 as the "Code") or any interest or penalties with respect to such an excise tax is assessed against Employee as a result of any such payments and other benefits if Employee takes such action (other than waiving Employee's right to any payments or benefits in excess of the payments or benefits which Executive has expressly agreed to waive under this Section 8.05) as the Company reasonably requests under the circumstances to mitigate or challenge such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”), the Company shall pay to Employee an additional payment (a “Gross-up Payment”) in an amount such that after payment by Employee of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on any Gross-up Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, if the Company or the Company's independent accountants make the determination described in this Section 8.05 and, further, determine that Employee will not be subject to any such excise tax if Employee waives Employee's right to receive a part of such payments or benefits and such part does not exceed Employee's Initials: ------------------- 6 $10,000, Employee shall irrevocably waive Employee's right to receive such part if an independent accountant or lawyer retained by Employee and paid by the Company agrees with the determination made by the Company or the Company's independent accountants with respect to the effect of such reduction in no event payments or benefits. Any determinations under this Section 8.05 shall the Gross-up Payment be made later in accordance with Section 280G of the Code and any applicable related regulations (whether proposed, temporary or final) and any related Internal Revenue Service rulings and any related case law and, if the Company reasonably requests that Employee take action to mitigate or challenge, or to mitigate and challenge, any such tax or assessment (other than waiving Employee's right to any payments or benefits in excess of the end of Employee’s taxable year next following Employee’s taxable year in payments or benefits which Employee remits the related taxes. The Company has expressly agreed to waive under this Section 8.05) and Employee complies with such request, the Company shall make an initial determination provide Employee with such information and such expert advice and assistance from the Company's independent accountants, lawyers and other advisors as to whether a Gross-up Payment is required Employee may reasonably request and the amount of shall pay for all expenses incurred in effecting such compliance and any such Gross-up Paymentrelated fines, penalties, interest and other assessments.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in a) In the event it shall be determined that any payment, benefit payment or distribution by the Company or its affiliated companies to or for the benefit of Employee, the Executive (whether paid, payable, provided, paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 6) (a “Payment”), ) would be subject to the excise tax imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest or and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company Executive shall pay be entitled to Employee receive an additional payment (a “Gross-up Up Payment”) in an amount such that after payment by Employee the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed on any upon the Gross-up Up Payment, Employee the Executive retains an amount of the Gross-up Up Payment equal to the Excise Tax imposed upon all Payments except for the Cobalt Equity Payments. Notwithstanding the provisions of the preceding sentence, if it shall be determined that Employee is entitled . (b) All determinations required to the Gross-up Payment, but that the Parachute Value of all Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable under Article this Section 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time whether and continuing, to the extent necessary, through to such Payment that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make when a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employment. The Gross-up Payment attributable to a particular Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made later than the end of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination as to whether a Gross-up Up Payment is required and the amount of any such Gross-up Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized public accounting firm selected and retained by the Company (the “Accounting Firm”) that will provide detailed supporting calculations both to the Company and to the Executive as soon as practicable following the receipt of notice from the Executive that there has been a Payment. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, as determined pursuant to this Section 6, shall be paid by the Company to the Executive promptly following the receipt of the Accounting Firm’s determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, the Accounting Firm shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty or comparable opinion supporting such determination in accordance with the practices and procedures of the Accounting Firm. Any determination by the Accounting Firm shall be binding upon the Company and the Executive absent manifest error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 6(c) and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Executive. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the 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 (i) give the Company any information reasonably requested by the Company relating to such claim, (ii) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim. The Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Executive shall also be entitled to be paid all reasonable legal fees and expenses, if any, incurred in connection with any tax audit or proceeding to the extent attributable to the application of Paragraph 4999 of the Code to any payment or benefit hereunder. Without limitation on the foregoing provisions of this Section 6(c), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6(c), the Executive becomes entitled to receive, and receives, any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 6(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 6(c), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of 30 days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Section 8.01), in In the event that any payment, benefit or distribution by the Company to or for the benefit of Employee, whether paid, payable, provided, distributed or distributable payment pursuant to the terms of this Agreement agreement or otherwise (a “Payment”), would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986 ("Code") or any interest successor or penalties with respect to such excise tax (such excise tax, together with any such interest or penalties, are hereinafter collectively referred to as the “Excise Tax”)similar provision, the Company shall pay to Employee you an additional payment amount (a “the "Gross-up Up Payment”") in an amount such that the net amount retained by you after payment by Employee deduction of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed on such payments (excluding payments pursuant to this paragraph 9), and after deduction for any Gross-up federal, state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the amount of such payments (excluding payments pursuant to this paragraph 9) before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the Excise Tax and the amount of such Excise Tax, Employee retains an any payments or benefits received or to be received by you in connection with a Change of Control or your termination of employment shall be treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to you such payments or benefits do not constitute parachute payments or excess parachute payments. For purposes of determining the amount of the Gross-up Up Payment, you shall be deemed to pay all federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment equal is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of your residence on the Entitlement Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax imposed upon all Payments except for is subsequently determined to be less than the Cobalt Equity Payments. Notwithstanding amount taken into account hereunder at the provisions of the preceding sentenceEntitlement Date, if it you shall be determined that Employee is entitled repay to the Gross-up PaymentCompany, but at the time that the Parachute Value amount of all Payments does not exceed 110% of the Safe Harbor Amountsuch reduction in Excise Tax is finally determined, then no Gross-up Payment shall be made to Employee and the amounts payable under Article 6 shall be reduced an amount necessary so that the Parachute Value total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of all Payments, such repayment at a rate equivalent to the rate described in the aggregate, equals the Safe Harbor Amount. The reduction Section 280G (d) (4) of the amounts Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the Entitlement Date, the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable under Article 6, if applicable, shall be made by reducing Payments payable hereunder (including reducing a Payment to zero) in the order in which such Payments would be made (beginning with such Payment that would be made first in time and continuing, to the extent necessary, through respect to such Payment excess) at the time that would be made last in time). For purposes of reducing the Payments to the Safe Harbor Amount, only amounts payable under Article 6 (and no other Payments) shall be reduced. If the reduction of the amount payable under Article 6 would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, then no amounts payable under Article 6 shall be reduced pursuant to this Section 8.01. The Company’s obligation to make a Gross-up Payment under this Section 8.01 shall not be conditioned upon Employee’s termination of employmentsuch excess is finally determined. The Gross-up Payment attributable to a particular Up Payment shall be made at the time such Payment is made; provided, however, that in no event shall the Gross-up Payment be made paid not later than the end fifteenth day following the Entitlement Date, or, if and to the extent such payment is not known or calculable as of Employee’s taxable year next following Employee’s taxable year in which Employee remits the related taxes. The Company and Employee shall make an initial determination such date, as to whether a Gross-up Payment is required and soon as the amount of any such Gross-up Paymentis known and calculable.