Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, in the event it shall be made without regard to whether determined that any payment or distribution by the deductibility of such payments (or any other payments or benefits Company to or for the benefit of Executivethe Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (including, without limitation, payments or distributions made pursuant to any deferred compensation or supplemental retirement plan), but determined without regard to any additional payments required under this Section 9) (a “Payment”) would be limited subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto), by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto), or benefits) would subject any interest or penalties are incurred by the Executive with respect to the federal such excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (such tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”). If any portion of , then the payments or benefits Executive shall be entitled to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including, without limitation, any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Payments, it being understood and agreed, anything in this Agreement to the Excess Parachute Payments; providedcontrary notwithstanding, that in no event shall the Executive be entitled to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of pursuant to this Section C.3, shall be adjusted 9 other than in respect of payments made pursuant to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”6(b). Notwithstanding the foregoing, if Executive shall not be entitled to receive a Gross-Up Payment unless the Internal Revenue Service shall assert an Excise Tax liability after-tax benefit that Executive is higher to receive will be reduced by greater than twenty percent (20%) as a result of the Excise Tax (if any) determined by excise tax. In all events, any payment pursuant to this Section 9 will be made no later than 2-1/2 months following the accounting firm, end of the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityyear in which a Participant’s termination of employment occurs.

Gross-Up Payment. Payments If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to Company and Employee that any payment or other benefit to Employee pursuant to this Agreement or otherwise (“Potential Parachute Payment”) is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax (“Excise Taxes”), then Company shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the 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 the Gross-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 C.1. and Section C.2. 409A of the Code shall not be “any similar tax” for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Paragraph 4(a). (b) Notwithstanding any other provisions of this Section 6, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Employee and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Employee shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Employee and (ii) not cause any Potential Parachute Payments to become nondeductible by Company by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Employee shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments (i) To the extent that any (a) severance payment, (b) transaction or other bonus payment, (c) payment under any transaction or other incentive plan, (d) payment related to equity or made under an equity incentive program, or (e) other amounts or payments of any type or kind whatsoever, in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (280G”)) or any other payments or benefits otherwise to or for the benefit of Executive) would be limited the Executive under this Agreement, or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments any other agreement or plan, or otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If , in any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) case constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”), then the aggregate Company shall pay to the Executive an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payments,” plus any interest and penalties thereon (other than those caused solely by Executive’s action or inaction). Therefore, the effect shall be to maintain the Executive in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Executive is entitled under this Section 11 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. (ii) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Executive of 10% or less, but not more than $250,000, would cause none of the Payments to be “excess parachute payments,” the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Executive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 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. Any notice given by the Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited pursuant to the Excise Taxpreceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (iii) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the The provisions of this Section C.311 shall expire, and shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest no further force or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further providedeffect, that ifon December 31, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability2010.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether determined that any vesting, payment or distribution of any type by the deductibility Company or any of such payments (its Affiliates or any other payments party in a transaction involving the Company or benefits its Affiliates or a party to the transactions contemplated by the Purchase Agreement or the Xxxxxx Xxxxxx Merger Agreement (as defined in the Purchase Agreement) to or for the benefit of ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) on or prior to the second anniversary of the Effective Date and that is “contingent” (within the meaning of Treasury Regulation Section 1.280G-1) on the consummation of the transactions contemplated by the Purchase Agreement would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”). If , then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Employee of all taxes (including any portion interest or penalties imposed with respect to such taxes), including any income taxes, employment taxes and Excise Tax, imposed upon the Gross-Up Payment, Employee retains an amount of the payments or benefits Gross-Up Payment equal to or for the benefit of Executive Excise Tax imposed upon the Payments. All determinations required to be made under this Section 11(a) (including, but not limited towithout limitation, payments and benefits under this Agreement but determined without regard to this paragraphwhether any vesting, payment or distribution (i) constitutes an a “excess parachute payment” within the meaning of Section 280G of the Code and (ii) is contingent on the aggregate consummation of such payments being hereinafter referred to as the “Excess Parachute Payments”)transactions contemplated by the Purchase Agreement) shall be made by the Board acting in good faith and in accordance with commonly accepted practices, the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; providedincluding, that to the extent any gross-up payment would be considered “deferred compensation” for purposes appropriate, the engagement of Section 409A an independent public accounting firm. Payment of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grossGross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment Up Payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as time that withholding is required in connection with any Payment, provided that the Committee may designate payment of any Gross-Up Payment shall be made prior to a Change the date Employee is to remit the Excise Tax as provided under of Control the Internal Revenue Code of 1986, as amended (the “accounting firmCode”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment or pursuant to address such higher Excise Tax liabilityany judgment or agreement with any taxing authority.

Gross-Up Payment. Payments under Section C.1. and Section C.2. Notwithstanding anything to the contrary in this Agreement (but subject to the remaining provisions of this Exhibit shall be made without regard to whether Article 10), in the deductibility of such payments (event that any payment, benefit or any other payments or benefits distribution by the Company to or for the benefit of Executive) Employee, whether paid, payable, provided, distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under 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”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive Employee an additional amount payment (the a “grossGross-up paymentPayment”) in an amount such that after reduction for payment by Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed on any Gross-up payment equals Payment, Employee retains an amount of the Gross-up Payment equal to the Excise Tax with respect to imposed upon all Payments except for the Excess Parachute Cobalt Equity Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and . Notwithstanding the provisions of this Section C.3the 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 8, if applicable, shall be adjusted made by reducing Payments payable hereunder (including reducing a Payment to zero) in the extent necessary order in which such Payments would be made (but only beginning with such Payment that would be made first in time and continuing, to the extent necessary) to comply with the requirements of Section 409A with respect , through to such payment so Payment that would be made last in time). For purposes of reducing the payment does not give rise Payments to the interest or additional tax Safe Harbor Amount, only amounts described at Section 409A(a)(1)(Bpayable under Article 8 (and no other Payments) or Section 409A(b)(4) shall be reduced. If the reduction of the Code (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 8 shall be reduced pursuant to this Section 409A penalties”)10.01. The Company’s obligation to make a Gross-up Payment under this Article 10 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; and further provided, however, that if, notwithstanding in no event shall the immediately preceding proviso, the grossGross-up payment cannot Payment be made to conform to later than the requirements end of Section 409A of Employee’s taxable year next following Employee’s taxable year in which Employee remits the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penaltiesrelated taxes. The Company and Employee shall make an initial determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, a Gross-up Payment is required and the amount of any grosssuch Gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Notwithstanding Anything in this Exhibit Agreement to the contrary, in the event it shall be made without regard to whether the deductibility of such payments (determined that any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits distribution to or for the benefit of Executive whether paid or payable or distributed or distributable pursuant to the terms of this Agreement (including, but not limited to, payments and benefits other than any payment under this Agreement but determined without regard Section 3) or otherwise would be subject to this paragraph) constitutes an “excess parachute payment” within the meaning excise tax imposed by Section 4999 of Section 280G the Internal Revenue Code of 1986 (the aggregate of “Code”) or a similar section (such payments being hereinafter referred to as payment, a “Change in Control Payment” and such excise tax on all such Change in Control Payments, together with any interest and penalties thereon, collectively the “Excess Parachute PaymentsExcise Tax”), the Company then Executive shall promptly pay be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount determined by the Accounting Firm such that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; providedby Executive of any tax thereon, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A Executive retains an amount of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted Gross-Up Payment equal to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the grossExcise Tax; provided, however, that if the aggregate value (as determined under Section 280G of the Code) of such Change in Control Payments is less than 110% of the product of “3 times” the Executive’s “base amount” (as defined in Section 280G(b)(3) of the Code) (such product, the “Golden Parachute Threshold”), then Executive shall not be entitled to any Gross-up payment Up Payment and, instead, the Change in Control Payments shall be determined without regard reduced so that their aggregate value (as so determined) is equal to any gross-up for $1.00 less than the Golden Parachute Threshold. For purposes of this Section 409A penalties. The determination as to whether 3, Executive’s payments applicable Federal, state and benefits include Excess Parachute Payments andlocal taxes shall be computed at the maximum marginal rates, if so, taking into account the amount of such payments, the amount effect of any Excise Tax owed with respect thereto, and loss of personal exemptions resulting from receipt of the amount of any grossGross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityUp Payment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard In the event that the Executive becomes ---------------- entitled to whether the deductibility of such payments (Severance Benefits or any other benefits or payments under Section 2 of this Agreement (other than pursuant to this Section 2.6(C)) or benefits to the KESOP or for the benefit of Executive) would be limited or precluded DSOP by Section 280G reason of the Code accelerated vesting of stock options thereunder (“Section 280G”) together, the "Total Benefits"), and without regard to whether such payments (or in the event that any other payments or benefits) would of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Taxes and FICA and Medicare withholding taxes upon the payment provided for by this Section 2.6(C), 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 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, 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 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 the 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether (i) Whether or not the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive becomes entitled to the federal excise tax levied on certain “excess parachute payments” under Severance Payments, except as otherwise provided in Section 4999 of the Code (the “Excise Tax”). If 6(b)(ii) hereof, if any portion of the payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit Executive's termination of Executive employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor any other plan, arrangement or agreement with the Company, with any Person whose actions result in a Change in Control or with any Person affiliated with the Company or such Person) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of the itemized deductions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (ii) If the Total Payments would (but for all taxes this Section 6(b)) be subject (including but not limited in whole or part) to the Excise Tax, but the aggregate value of the portion of the Total Payments that are considered "parachute payments" within the meaning of section 280G(b)(2) of the Code is less than 330% of the Executive's Base Amount, then subsection (i) of this Section 6(b) shall not apply, and the cash Severance Payments shall be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero), to the extent necessary to cause the Total Payments not to be subject to the Excise Tax. (iii) 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") reasonably acceptable to the Executive and selected by the accounting firm that was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (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) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, (x) the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the states and localities of the Executive's residence and employment on the Date of Termination, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes, (y) the Executive shall be deemed to pay employment taxes at the highest rates in effect in the state and locality of the Executive's employment, and (z) amounts actually withheld from any payment to the Executive pursuant to Section 11 hereof with respect to income or employment taxes shall be ignored. (iv) 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 and, after giving effect to such Finally Determined amount, the Severance Payments are to be reduced pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the date that the amount of such reduction in the Severance Payments is Finally Determined, the Gross-Up Payment previously paid to the Executive and the amount of such reduction in the Severance Payments, plus interest on the amount of such repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (v) 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, but, after giving effect to such Finally Determined amount, no reduction of the Severance Payments is required pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is Finally Determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (vi) Except as otherwise provided in Section 6(b)(vii) below, in the event that the Excise Tax is Finally Determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall, within five (5) business days following the time that the amount of such excess is Finally Determined, (A) make an additional Gross-Up Payment in respect of such excess and a Gross-Up Payment in respect of any amounts paid pursuant to clause (B) or (C) of this Section 6(b)(vi) (plus any interest, penalties or additions payable by the Executive with respect to such grossamounts), (B) if the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, but after giving effect to such final determination, the Severance Payments should not have been so reduced, the amount by which the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, and (C) interest on such amounts at 120% of the rate provided in Section 1274(b)(2) of the Code. (vii) In the event that the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof and the value of the Total Payments that are considered "parachute payments" within the meaning of Section 280G(b)(2) of the Code is Finally Determined to differ from the amount taken into account hereunder in calculating the Gross-up payment equals Up Payment, but such Finally Determined value still does not exceed 330% of the Excise Tax with respect Executive's Base Amount, then, within five (5) business days following the date on which such value is Finally Determined, (x) the Company shall pay to the Excess Parachute Payments; provided, that Executive the amount (if any) by which the reduced Severance Payments (after taking the Finally Determined value into account) exceeds the amount of the reduced Severance Payments actually paid to the extent any gross-up Executive, plus interest on the amount of such payment would be considered “deferred compensation” for purposes at 120% of the rate provided in Section 409A 1274(b) of the Code, or (y) the manner and time of payment, and the provisions of this Section C.3, Executive shall be adjusted pay to the extent necessary Company the amount (but only if any) by which the reduced Severance Payments actually paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Executive exceeds the amount of the gross-up payment shall be determined without regard to any gross-up for reduced Severance Payments (after taking the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinally Determined value into account), if so, plus interest on the amount of such payments, payment at 120% of the amount rate provided in Section 1274(b) of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityCode.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether (i) Whether or not the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive becomes entitled to the federal excise tax levied on certain “excess parachute payments” under Severance Payments, except as otherwise provided in Section 4999 of the Code (the “Excise Tax”). If 6(b)(ii) hereof, if any portion of the payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit Executive’s termination of Executive employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor any other plan, arrangement or agreement with the Company, with any Person whose actions result in a Change in Control or with any Person affiliated with the Company or such Person) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments or benefits, excluding the Gross-Up Payment, being hereinafter referred to as the “Excess Parachute Total Payments”)) will be subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, and after taking into account the phase out of the itemized deductions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (ii) If the Total Payments would (but for all taxes this Section 6(b)) be subject (including but not limited in whole or part) to the Excise Tax, but the aggregate value of the portion of the Total Payments that are considered “parachute payments” within the meaning of section 280G(b)(2) of the Code is less than 330% of the Executive’s Base Amount, then subsection (i) of this Section 6(b) shall not apply, and the cash Severance Payments shall be reduced (if necessary, to zero), and all other Severance Payments shall thereafter be reduced (if necessary, to zero), to the extent necessary to cause the Total Payments not to be subject to the Excise Tax. (iii) 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”) reasonably acceptable to the Executive and selected by the accounting firm that was, immediately prior to the Change in Control, the Company’s independent auditor (the “Auditor”), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Section 280G(b)(4)(A) of the Code, (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) represent reasonable compensation for services actually rendered (within the meaning of Section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, (x) the Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the states and localities of the Executive’s residence and employment on the Date of Termination, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes, (y) the Executive shall be deemed to pay employment taxes at the highest rates in effect in the state and locality of the Executive’s employment, and (z) amounts actually withheld from any payment to the Executive pursuant to Section 11 hereof with respect to income or employment taxes shall be ignored. (iv) 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 and, after giving effect to such Finally Determined amount, the Severance Payments are to be reduced pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the date that the amount of such reduction in the Severance Payments is Finally Determined, the Gross-Up Payment previously paid to the Executive and the amount of such reduction in the Severance Payments, plus interest on the amount of such repayments at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (v) 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, but, after giving effect to such Finally Determined amount, no reduction of the Severance Payments is required pursuant to Section 6(b)(ii) hereof, then the Executive shall repay to the Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is Finally Determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive), to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code. (vi) Except as otherwise provided in Section 6(b)(vii) below, in the event that the Excise Tax is Finally Determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall, within five (5) business days following the time that the amount of such excess is Finally Determined, (A) make an additional Gross-Up Payment in respect of such excess and a Gross-Up Payment in respect of any amounts paid pursuant to clause (B) or (C) of this Section 6(b)(vi) (plus any interest, penalties or additions payable by the Executive with respect to such grossamounts), (B) if the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, but after giving effect to such final determination, the Severance Payments should not have been so reduced, the amount by which the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof, and (C) interest on such amounts at 120% of the rate provided in Section 1274(b)(2) of the Code. (vii) In the event that the Severance Payments were reduced pursuant to Section 6(b)(ii) hereof and the value of the Total Payments that are considered “parachute payments” within the meaning of Section 280G(b)(2) of the Code is Finally Determined to differ from the amount taken into account hereunder in calculating the Gross-up payment equals Up Payment, but such Finally Determined value still does not exceed 330% of the Excise Tax with respect Executive’s Base Amount, then, within five (5) business days following the date on which such value is Finally Determined, (x) the Company shall pay to the Excess Parachute Payments; provided, that Executive the amount (if any) by which the reduced Severance Payments (after taking the Finally Determined value into account) exceeds the amount of the reduced Severance Payments actually paid to the extent any gross-up Executive, plus interest on the amount of such payment would be considered “deferred compensation” for purposes at 120% of the rate provided in Section 409A 1274(b) of the Code, or (y) the manner and time of payment, and the provisions of this Section C.3, Executive shall be adjusted pay to the extent necessary Company the amount (but only if any) by which the reduced Severance Payments actually paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Executive exceeds the amount of the gross-up payment shall be determined without regard to any gross-up for reduced Severance Payments (after taking the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinally Determined value into account), if so, plus interest on the amount of such payments, payment at 120% of the amount rate provided in Section 1274(b) of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityCode.

Gross-Up Payment. Payments In the event that any payments to which Employee becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Employee at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be 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 on such day an estimate, as determined in good faith by the Company, 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, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. 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 Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Employee in connection with a Change in Control of the Company or for the benefit termination of Executive Employee's employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments, and (b) the 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 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, Employee shall be deemed 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 and the 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 payments state and local taxes. 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, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that any xxxxxxx or distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Employee, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), 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 payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Employee shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Employee under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Employee without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 4(a), unless an alternative method of reduction is elected by the accounting firmEmployee. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.

Gross-Up Payment. Payments If at any time or from time to time, it shall be determined by tax counsel mutually agreeable to Employer and Employee that any payment or other benefit to Employee pursuant to this Agreement or otherwise (“Potential Parachute Payment”) is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax (“Excise Taxes”), then Employer shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the 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 the Gross-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 C.1. and Section C.2. 409A of the Code shall not be “any similar tax” for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Section 6. (b) Notwithstanding any other provisions of this Section 10, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Employee and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Employee shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Employee and (ii) not cause any Potential Parachute Payments to become nondeductible by Employer by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Employee shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event that it shall be made without regard to whether determined at any time that the deductibility of such payments payment provided under paragraph 8(d) above (the "Contract Payment") or any other payments payment or benefits to or for distribution by the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Company to the federal excise Executive (including deemed payments arising from accelerated vesting of stock options) is subject to the tax levied on certain “excess parachute payments” under Section (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code (the “Excise Tax”). If any portion of 1986, as amended, Section 11.5 of the payments Company's 1997 Employee Stock Option Plan or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess similar "parachute payment” within " limitations under any other agreement between the meaning of Section 280G (Company and the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”)Executive that are in effect shall not apply, and the Company shall promptly pay to the Executive an additional amount (the “gross-up payment”"Gross- Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments 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 of the Company or the Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a change in control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a change in control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax) with respect to such gross-up payment equals , unless in the Excise Tax with respect opinion of tax counsel selected by the Company's independent auditors and acceptable to the Excess Parachute Payments; providedExecutive the Total Payments (in whole or in part) do not constitute parachute payments, that to or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A section 280G(b)(4) of the Code either in their entirety or in excess of the base amount within the meaning of section 280G(b)(3) of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted or are otherwise not subject to the extent necessary Excise Tax, (but only to the extent necessaryii) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the grossTotal Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total 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 cash benefits or any deferred payment or benefit shall be determined without regard by the Company's independent auditors in accordance with the principles of sections 280G(b)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to any grosspay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-up for Up Payment is to be made and state and local income taxes at the Section 409A penaltieshighest marginal rate of taxation in the state and locality of the Executive's residence on the date of determination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The determination as In the event that the Excise Tax is subsequently determined to whether Executive’s payments and benefits include Excess Parachute Payments andbe less than the amount taken into account hereunder at the time of payment of the Gross-Up Payment, if so, the Executive shall repay to the Company at the time that the amount of such payments, reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made such repayment at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.rate provided in section

Gross-Up Payment. Payments (a) In the event that the Executive becomes ---------------- entitled to any payments under Section C.1. and 5 or Section C.2. 8 of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement, or under any other payments agreement, plan or benefits to or arrangement for the benefit making of Executive) would be limited payments to the Executive upon a Change in Control or precluded by Section 280G upon the termination of employment caused by, subsequent to, or otherwise with respect to a Change in Control (together, the "Total Benefits"), and in the event that any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to the Total Benefits. If no payment is due Executive upon a Change of Control under Section 5 of this Agreement, no payment shall be made under this Section 6. (b) 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 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, 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). (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 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. (d) If Executive is entitled to any other payments or benefits in connection with a Change in Control or the termination of Executive's employment, the amount as referred to in clause (b) of any Excise Tax owed with respect theretothis Section 6, otherwise than those payable under this Agreement (collectively, "Other Arrangements"), and the amount if any of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior those Other Arrangements is subject to a Change limitation designed to prevent payments under them from being "parachute payments" or "excess parachute payments" within the meaning of Control the provisions of the Code referred to in clause (b) of this Section 6 through an express reference to such limitations in the “accounting firm”). Notwithstanding the foregoingCode, then, if the Internal Revenue Service any amount is payable to Executive under Section 5 of this Agreement, such limitations shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment no longer be deemed to address such higher Excise Tax liabilitybe effective for any purpose of those Other Arrangements or in making calculations under this Section 6.

Gross-Up Payment. Payments In the event that (i) the Employee becomes entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of this agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b) (2) of the aggregate Code, and all "excess parachute payments" within the meaning of Section 280G(b) (1) 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 the Employee 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 in Control Payments 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 in Control Payments and the Benefit 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 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, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such payments being hereinafter referred state and local taxes. In the event that the Excise Tax is subsequently determined to as be less than the “Excess Parachute Payments”amount taken into account hereunder at the time of termination of the Employee's employment, the Employee shall repay to the Company at that time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address the Employee in respect of such higher Excise Tax liabilityexcess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or consideration received by Executive from a Group Company (or any Person whose actions result in a change in ownership or effective control or in the ownership of a substantial portion of assets of the Group Companies covered by Section C.1. and 280G(b)(2) of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any Person affiliated with any Group Company or any such Person) in connection with a Change of Control or any other change in ownership or control or in the ownership of a substantial portion of assets for purposes of Section C.2. 280G (in each case whether paid or payable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of any additional payments required under this Section 6(a)) (any such payments (payment or any other payments or benefits to or for the benefit of Executiveconsideration, a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 6(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 6(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee (or, if there is no Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive in which event the Company shall bear the costs of retaining such independent accounting firm. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any Payment will be subject to the Excise Tax and the amount of such Excise Tax under Section 6(a), any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (280G(b)(2) of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G(b)(1) of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise TaxTax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), that such payments or benefits (in whole or in part) with respect do not constitute parachute payments, or that such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) 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 tax 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 tax 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 gross-up payment equals the Excise Tax with respect to the Excess Parachute Paymentsstate and local taxes; provided, however, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryextent) required to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(BRegulation §409A-3(i)(l)(v) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of under the Code, the amount of the grossGross-up payment Up Payment shall be determined without regard equal to any grossall of the federal, state and local taxes imposed on Executive as a result of the Excise Tax and Gross-up Up Payment. (e) The Gross-Up Payment provided for in Section 6(a) shall be made in a cash, lump-sum payment to Executive (or the Section 409A penalties. The determination as to whether appropriate taxing authority on Executive’s payments and benefits include Excess Parachute Payments andbehalf) when due but in no event later than the end of the year following the year in which Executive remits the Excise Tax, if sonet of any required tax withholdings, upon the later of (i) the fifth business day following the effective date of termination, or (ii) the calculation of the amount of such paymentsthe Gross-Up Payment under Section 6(b). Any Gross-Up Payment required hereunder that is not made in a timely manner shall bear interest at a rate equal to the prime rate quoted on the date the payment is first overdue by Citibank N.A., New York, New York plus two percent until paid. (f) As a result of the amount uncertainty in the application of any Excise Tax owed with respect theretoSection 280G of the Code at the time of a determination hereunder, and the amount of any gross-up payment shall it is possible that payments will be made at by the Company’s expense Company which should not have been made under Section 6(a) (“Overpayment”) or that additional payments which are not made by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior Company pursuant to a Change of Control Section 6(a) should have been made (the “accounting firmUnderpayment”). Notwithstanding In the foregoing, if event that there is a final determination by the Internal Revenue Service Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall assert an Excise Tax liability that be promptly reimbursed by Executive to the Company. In the event there is higher than the Excise Tax (if any) determined a final determination by the accounting firmInternal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (g) Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or in any contract or agreement with the Company or any other Group Company at or subsequent to the date of termination of Executive’s employment for any reason shall promptly augment the gross-up payment to address be payable in accordance with such higher Excise Tax liabilityplan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of (a) Anything in this Exhibit Agreement to the contrary notwithstanding, in the event that it shall be made without regard to whether the deductibility of such payments (determined that any payment or any other payments or benefits consideration to or for the benefit of, or received by, Executive from a Group Company in connection with the Acquisition, including pursuant to those certain grants on the date hereof to Executive of certain ordinary shares of Xxxxxx Xxxxxxxx and preferred shares of Xxxxxx Xxxxxxxx Holdings Company II, Limited (“Warner II”) pursuant to (i) that certain Share Award Agreement pursuant to the 2005 Equity Incentive Plan, dated as of the date hereof by and among Xxxxxx Xxxxxxxx and Executive, and (ii) that certain Strip Grant Agreement, dated as of the date hereof by and among Xxxxxx Xxxxxxxx, Xxxxxx XX, and the Executive, (any such payments or consideration, a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 3(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 3(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee of the Board (or, if there is no such Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax under Section 3, any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”280G(b)(2) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, and all “excess parachute payments” within the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements meaning of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4280G(b)(1) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot shall be made to conform treated as subject to the requirements Excise Tax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Section 409A Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) For purposes of determining the amount of the grossGross-up payment Up Payment, Executive shall be determined without regard deemed to any grosspay federal income taxes at the highest marginal rate of tax in the calendar year in which the Gross-up for Up Payment is to be made and state and local income taxes at the Section 409A penalties. The determination as to whether highest marginal rate of tax in the state and locality of Executive’s payments 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 benefits include Excess Parachute local taxes. (e) The Gross-Up Payments andprovided for in Section 3(a) shall be made in a cash, if solump-sum payment to the Executive (or appropriate taxing authority on Executive’s behalf) when due, net of any required tax withholdings, upon the calculation of the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any grossGross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”Up Payment under Section 3(a). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability Any Gross-Up Payment required hereunder that is higher than not made in a timely manner shall bear interest at a rate equal to the Excise Tax (if any) determined prime rate quoted on the date the payment is first overdue by the accounting firmCitibank N.A., the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityNew York, New York plus two percent until paid.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“"Section 280G”") and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Section 4999 of the Code (the “"Excise Tax”"). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “"excess parachute payment” " within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “"Excess Parachute Payments”"), the Company shall promptly pay to Executive an additional amount (the “"gross-up payment”") that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “"deferred compensation” " for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “"Section 409A penalties”"); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s 's payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s 's expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “"accounting firm”"). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that anx xxxxxxt or distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Employee, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), 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 payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Employee shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Employee under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Employee without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 4(a), unless an alternative method of reduction is elected by the accounting firmEmployee. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.

Gross-Up Payment. Payments under (i) For purposes of Section C.1. and Section C.2. 10(c), "Gross-Up Payment" means an additional amount such that the net amount retained by the Executive, after deduction of this Exhibit shall be made without regard to whether the deductibility of such payments Excise Tax (or as defined below) on any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent and/or under any gross-up payment would be considered “deferred compensation” for purposes of Section 409A option plan or agreement of the Code, Corporation received by the manner and time Executive from the Corporation as a result of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (within the “accounting firm”). Notwithstanding meaning of section 280G(b)(2) of the foregoingCode) (collectively, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than "Payments") and any federal, state and local income tax and the Excise Tax (if any) determined upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by the accounting firmExecutive with respect thereto (other than such interest, penalties or additions to tax payable solely as a result of action or inaction by the Company Executive), shall promptly augment be equal to the gross-up payment total amount of the Payments. "Excise Tax" means the tax imposed by Section 4999 of the Code. For purposes of determining whether any of the Payments will be subject to address such higher the Excise Tax liability.and the amounts of such Excise Tax, (x) the total amount of the Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of independent counsel selected by the Corporation and reasonably acceptable to the Executive ("Independent counsel"), a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax; (y) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of section 280G(b)

Gross-Up Payment. Payments (a) In the event that the Executive becomes ---------------- entitled to any payments under Section C.1. and 5 or Section C.2. 8 of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement, or under any other payments agreement, plan or benefits to or arrangement for the benefit making of Executive) would be limited payments to the Executive upon a Change in Control or precluded by Section 280G upon the termination of employment caused by, subsequent to, or otherwise with respect to a Change in Control (together, the "Total Benefits"), and in the event that any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to the Total Benefits. If no payment is due Executive upon a Change of Control under Section 5 of this Agreement, no payment shall be made under this Section 6. (b) 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 deferred payments or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G9d)(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). (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 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. (d) If Executive is entitled to any other payments or benefits in connection with a Change in Control or the termination of Executive's employment, the amount as referred to in clause (b) of any Excise Tax owed with respect theretothis Section 6, otherwise than those payable under this Agreement (collectively, "Other Arrangements"), and the amount if any of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior those Other Arrangements are subject to a Change limitation designed to prevent payments under them from being "parachute payments" or "excess parachute payments" within the meaning of Control the provisions of the Code referred to in clause (b) of this Section 6 through an express reference to such limitations in the “accounting firm”). Notwithstanding the foregoingCode, then, if the Internal Revenue Service any amount is payable to Executive under Section 5 of this Agreement, such limitations shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment no longer be deemed to address such higher Excise Tax liabilitybe effective for any purpose of those Other Arrangements or in making calculations under this Section 6.

Gross-Up Payment. Payments In the event that any payments to which Employee becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Employee at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be 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 on such day an estimate, as determined in good faith by the Company, 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, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. 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 Employee, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Employee in connection with a Change in Control of the Company or for the benefit termination of Executive Employee's employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments, or (b) the 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 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, Employee shall be deemed 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 and the 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 payments state and local taxes. 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, Employee shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, following a Change in Control, if it shall be made without regard to whether determined by the deductibility of such payments Accounting Firm (as contemplated by Section 6(b) below) that any payment or distribution by the Surviving Entity or any other payments or benefits of its affiliates to or for the benefit of the Executive) , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be limited an “excess parachute payment” with respect to which the Executive would be subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto) or benefits) would subject Executive to the federal excise any similar tax levied on certain “excess parachute payments” under Section 4999 of the Code imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”). , then: (1) If any portion the Total Parachute Payments do not exceed the Trigger Amount, then the payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary, but not in excess of 20% of the payments or and benefits to be made and provided under this Agreement, such that no Payment will be subject to Excise Tax. If the elimination of 20% of the payments and benefits to be made or for provided under this Agreement that would otherwise be subject to the benefit Excise Tax is not sufficient to avoid the Excise Tax, then 20% of the payments and benefits provided under this Agreement shall be eliminated and the Executive shall be entitled to receive a Gross-Up Payment; provided, however, that no Gross-up Payment shall be made with respect to the Excise Tax, if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Original Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment as determined after the elimination of 20% of the payments and benefits under as provided by this Agreement but determined without regard Section 6(a)(1). (2) If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to this paragraph) constitutes receive an additional payment or payments (collectively, a “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsGross-Up Payment”); provided, the Company shall promptly pay to Executive an additional amount (the “grosshowever, that no Gross-up payment”) that after reduction for all taxes (including but not limited Payment shall be made with respect to the Excise Tax) , if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Original Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit Agreement to the contrary notwithstanding, following a Change in Control, if it shall be made without regard to whether determined by the deductibility of such payments Accounting Firm (as contemplated by Section 6(b) below) that any payment or distribution by the Surviving Entity or any other payments or benefits of its affiliates to or for the benefit of the Executive) , whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including, without limitation, any stock option, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing (a “Payment”), would be limited an “excess parachute payment” with respect to which the Executive would be subject to the excise tax imposed by Section 4999 of the Code (or precluded any successor provision thereto) by reason of being considered “contingent on a change in ownership or control” of the Company, within the meaning of Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments successor provision thereto) or benefits) would subject Executive to the federal excise any similar tax levied on certain “excess parachute payments” under Section 4999 of the Code imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”). , then: (1) If any portion the Total Parachute Payments do not exceed the Trigger Amount, then the payments and benefits to be made or provided under this Agreement to the Executive shall be reduced (reducing or eliminating the earliest payments first) by the least amount necessary, but not in excess of 20% of the payments or and benefits to be made and provided under this Agreement, such that no Payment will be subject to Excise Tax. If the elimination of 20% of the payments and benefits to be made or for provided under this Agreement that would otherwise be subject to the benefit Excise Tax is not sufficient to avoid the Excise Tax, then 20% of the payments and benefits provided under this Agreement shall be eliminated and the Executive shall be entitled to receive a Gross-Up Payment; provided, however, that no Gross-up Payment shall be made with respect to the Excise Tax, if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment as determined after the elimination of 20% of the payments and benefits under as provided by this Agreement but determined without regard Section 6(a)(1). (2) If the Total Parachute Payments exceed the Trigger Amount, then the Executive shall be entitled to this paragraph) constitutes receive an additional payment or payments (collectively, a “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsGross-Up Payment”); provided, the Company shall promptly pay to Executive an additional amount (the “grosshowever, that no Gross-up payment”) that after reduction for all taxes (including but not limited Payment shall be made with respect to the Excise Tax) , if any, attributable to any incentive stock option, as defined by Section 422 of the Code, granted prior to the execution of the Agreement. The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including, but not limited to, any federal, state or local income taxes, Excise Taxes, FICA and Medicare withholding taxes and interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of Anything in this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Agreement to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of contrary notwithstanding and except as set forth below, in the Code event that a Payment (as defined below) is received by the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingthat, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code, is contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company (a “280G Transaction”) with regard to a 280G Transaction that occurs on or prior to the aggregate third anniversary of the IPO Date and the Accounting Firm (as defined below) shall determine that receipt of such payments being hereinafter referred Payment would subject the Executive to the Excise Tax (as the “Excess Parachute Payments”defined below), then the Company Executive shall promptly pay be entitled to Executive receive an additional amount payment (the “grossGross-up paymentUp Payment”) that in an amount such that, after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) and any interest or penalties imposed with respect to such gross-up payment equals the taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax with respect imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed pursuant to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time Executive retains an amount of payment, and the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing provisions of this Section C.38(a), if it shall be determined that the Executive is entitled to the Gross-Up Payment, but that the Parachute Value (as defined below) of all Payments does not exceed 110% of the Safe Harbor Amount (as defined below), then no Gross-Up Payment shall be made to the Executive and the Agreement Payments (as defined below) shall be reduced so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the Agreement Payments, if applicable, shall be adjusted to made by reducing the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess under the following sections of this Agreement in the following order: first from Section 5(a)(i)(B), then from Section 5(a)(iii), then from Section 5(a)(iv) and lastly from Section 5(a)(ii). For purposes of reducing the Payments to the Safe Harbor Amount, only Agreement Payments (and no other Payments) shall be reduced. If the reduction of the Agreement Payments would not result in a reduction of the Parachute Value of all Payments andto the Safe Harbor Amount, if so, then there shall be no reduction in the amount of such payments, the amount of any Excise Tax owed with respect thereto, Agreement Payments pursuant to this Section 8(a) and the amount of any gross-up payment Executive shall be made at entitled to the Gross-Up Payment. The Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as obligation to make Gross-Up Payments under this Section 8(a) shall not be conditioned upon the Committee may designate prior to a Change Executive’s termination of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityemployment.

Gross-Up Payment. Payments under If at any time or from time to time, it shall be determined by DST's independent auditors that any payment or other benefit to Executive pursuant to this Agreement or otherwise ("Potential Parachute Payment") is or will become subject to the excise tax imposed by Section C.14999 of the Code or any similar tax ("Excise Taxes"), then DST shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment ("Gross-Up Payment") with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the "Gross-Up Multiple"), the numerator or which is one (1.0), and Section C.2the 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 the Gross-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. (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 Paragraph 8(a). (b) Notwithstanding any other provisions of this Exhibit Paragraph 9, if the aggregate After-Tax Amount ( as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Executive, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Executive and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Executive shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Executive and (ii) not cause any Potential Parachute Payments to become nondeductible by DST by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Executive shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments In the event that (i) the Employee becomes entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher that 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of the agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 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 Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Employee 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 aggregate meaning of Section 280G(b)(4) of the Code, (ii) the amount of the Change in Control Payments 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 in Control Payments 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 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, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such payments being hereinafter referred state and local taxes. 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 Employee's employment, the Employee shall repay to the Company at that time that amount of such reduction in Excise Tax as is finally determined to be the “Excess Parachute Payments”portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address the Employee in respect of such higher Excise Tax liabilityexcess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that any payment or distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Officer, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), 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 payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Officer shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Officer of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Officer retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 7(a), if it shall be determined that the Officer is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Officer under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Officer without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Officer. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 6(a), unless an alternative method of reduction is elected by the accounting firmOfficer. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive 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 except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below ---------------- zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm shall provide --------------- detailed supporting calculations both to the Company and Executive within fifteen (15) 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. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. 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 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 or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits 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) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company 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 “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income 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 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible mxxxer, 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 direct or directs Executive to pay such claim and sue for a refund, the Company shall advance the amount of xxxh payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance 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 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 payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax 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 a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) 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 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. The provisions of this Exhibit Section 12 shall only be made without regard to whether in force and effect for the deductibility twenty-four (24)-month period measured from the Commencement Date and shall automatically become null and void upon the expiration of such payments that twenty-four (24)-month period: (a) In the event it will be determined that any payment or distribution of any other payments or benefits type to or for the benefit of the Executive) would be limited , by the Company, any of its affiliates, any Person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Company or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Company’s assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate “Code”), and the regulations thereunder--a “Change in Control Event”) or any affiliate of such payments being hereinafter Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “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 and penalties, are collectively referred to as the “Excess Parachute PaymentsExcise Tax”), then the Company shall promptly pay Executive will be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. (b) All determinations as to whether any of the Excess Parachute Payments; provided, that to Total Payments are “parachute payments” (within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G of the Code), the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grosswhether a Gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such paymentsGross-Up Payment, and any amounts relevant to the last sentence of the paragraph above, will be made by an independent registered public accounting firm selected by the Company from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm selected by the Company will not have an ongoing audit or consulting relationship with the Company at the time it is selected. The Accounting Firm will provide its determination (the “Determination”), together with detailed supporting calculations regarding the amount of any Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the effective date of the Change in Control or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax). Any determination by the Accounting Firm will be binding upon The Company and the Executive. As a result of uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Company should have made Gross-Up Payments (“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 will determine the amount of the Underpayment or Overpayment that has occurred. In the case of an Underpayment, the amount of any Excise Tax owed with respect theretosuch Underpayment will be promptly paid by the Company to or for the benefit of the Executive. In the case of an Overpayment, the Executive will, 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 the amount of any gross-up payment shall be made at procedures established by, the Company’s expense , and otherwise reasonably cooperate with the Company to correct such Overpayment. In addition, should the Company decide to contest any assessment by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than of a Code Section 4999 excise tax on one or more items comprising the Excise Tax (if any) determined Total Payments, the Executive will comply with all reasonable actions requested by the accounting firmCompany in connection with such proceedings, the Company but shall promptly augment the grossnot be required to incur any out-up payment to address such higher Excise Tax liabilityof-pocket costs in so doing.

Gross-Up Payment. Payments under Section C.1. and Section C.2. The provisions of this Exhibit Section 12 shall only be made without regard in force and effect if a Change in Control Event (as defined below) is effected within the twenty-four (24)-month period measured from the Commencement Date and shall automatically become null and void should such a Change in Control Event not be effected prior to whether the deductibility expiration of such payments that twenty-four (24)-month period: (a) In the event it is determined that any payment or distribution of any other payments or benefits type to or for the benefit of the Executive) would be limited , by the Company, any of its affiliates, any Person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Company or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Company’s assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate “Code”), and the regulations thereunder—a “Change in Control Event”) or any affiliate of such payments being hereinafter Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “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 and penalties, are collectively referred to as the “Excess Parachute PaymentsExcise Tax”), then the Company shall promptly pay Executive will be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any Excise Tax imposed upon the Gross-up payment equals Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. (b) All determinations as to whether any of the Excess Parachute Payments; provided, that to Total Payments are “parachute payments” (within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G of the Code), the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grosswhether a Gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such paymentsGross-Up Payment, and any amounts relevant to the last sentence of the paragraph above, will be made by an independent registered public accounting firm selected by the Company from among the largest four accounting firms in the United States (the “Accounting Firm”). The Accounting Firm will provide all applicable determinations with respect to any of the Total Payments that become due and payable at the time of the Change in Control Event (the “Change in Control Determination”), together with detailed supporting calculations regarding the amount of the Excise Tax, any required Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the effective date of the Change in Control Event or such earlier time as is requested by the Company or the Executive (if the Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax owed Tax). In addition, the Accounting Firm will provide all applicable determinations with respect theretoto any of the Total Payments that become due and payable at the time of the Executive’s Separation from Service (the “Separation from Service Determination”), and together with detailed supporting calculations regarding the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax Tax, any required Gross-Up Payment and any other relevant matter, both to the Company and the Executive within ten (10) business days after the date of the Executive’s Separation from Service. The Change in Control and Separation from Service Determinations made by the Accounting Firm will be binding upon the Company and the Executive. The Gross-Up Payment (if any) determined on the basis of the Change in Control Determination shall be paid to or on behalf of Executive within five (5) business days after the completion of such Determination or (if later) at the time the related Excise Tax is remitted to the appropriate tax authorities. The Gross-Up Payment (if any) determined on the basis of the Separation from Service Determination shall be paid to or on behalf of Executive within five (5) business days after the completion of such Determination or (if later) at the time the related Excise Tax is remitted to the appropriate tax authorities. (c) In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be greater than the accounting firmExcise Tax liability taken into account for purposes of any Gross-Up Payment or Payments initially made to the Executive pursuant to the provisions of Section 12(b), then within forty-five (45) days following that Final Determination, the Executive shall notify the Company shall promptly augment of such determination, and the grossAccounting Firm shall, within thirty (30) days thereafter, make a new Excise Tax calculation based upon that Final Determination and provide the Company and the Executive with the supporting calculations for any supplemental Gross-up payment Up Payment attributable to address such higher that excess Excise Tax liability. The Company shall make the supplemental Gross-Up payment to the Executive within five (5) business days following the completion of the applicable calculations or (if later) at the time such excess tax liability is remitted to the appropriate tax authorities. In the event that the Executive’s actual Excise Tax liability is determined by a Final Determination to be less than the Excise Tax liability taken into account for purposes of any Gross-Up Payment or Payments initially made to the Executive pursuant to the provisions of Section 12(b), then the Executive shall refund to the Company, promptly upon receipt, any federal or state tax refund attributable to the Excise Tax overpayment. For purposes of this Section 12(c), a “Final Determination” means an audit adjustment by the Internal Revenue Service that is either (i) agreed to by both the Executive and the Company (such agreement by the Company to be not unreasonably withheld) or (ii) sustained by a court of competent jurisdiction in a decision with which the Executive and the Company concur or with respect to which the period within which an appeal may be filed has lapsed without a notice of appeal being filed.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") in an amount such that, ---------------- after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive 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 except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced ---------------- (but not below zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Debtor's or the Reorganized Entity's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Debtor or the Reorganized Entity and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Debtor or the Reorganized Entity. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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 Debtor or the Reorganized Entity. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Debtor or the Reorganized Entity to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Debtor or the Reorganized Entity 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 that will not have been made by the Debtor or the Reorganized Entity should have been made (the "Underpayment"), ------------ consistent with the calculations required to be made hereunder. In the event the Debtor or the Reorganized Entity exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments 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 Debtor or benefits the Reorganized Entity to or for the benefit of Executive. (c) The Executive shall notify the Debtor or the Reorganized Entity in writing of any claim by the Internal Revenue Service that, if successful, would be limited require the payment by the Debtor or precluded by Section 280G the Reorganized Entity of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Debtor or the Reorganized Entity of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Debtor or the Reorganized Entity (or such shorter period ending on the date that any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 payment of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) Taxes with respect to such grossclaim is due). If the Debtor or the Reorganized Entity notifies Executive in writing prior to the expiration of such period that the Debtor or the Reorganized Entity desires to contest such claim, Executive shall: (i) give the Debtor or the Reorganized Entity any information reasonably requested by the Debtor or the Reorganized Entity relating to such claim, (ii) take such action in connection with contesting such claim as the Debtor or the Reorganized Entity shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Debtor or the Reorganized Entity, (iii) cooperate with the Debtor or the Reorganized Entity in good faith in order effectively to contest such claim, and (iv) permit the Debtor or the Reorganized Entity to participate in any proceedings relating to such claim; provided, however, that the Debtor or the Reorganized Entity 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-up payment equals the tax basis, for any Excise Tax or income 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 6.4(c), the Debtor or the Reorganized Entity shall control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, 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 Debtor or the Reorganized Entity shall determine; provided, however, that, if the Debtor or the Reorganized Entity direct or directs Executive to pay such claim and xxx for a refund, the Debtor or the Reorganized Entity 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) 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 Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Debtor's or the Reorganized Entity's control of the contest shall be limited to issues with respect to which the 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 a Gross-Up Payment or an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of Debtor's or the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Reorganized Entity's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Debtor or the Reorganized Entity 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 Debtor or the Reorganized Entity pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Debtor or the Reorganized Entity do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Debtor or the Reorganized Entity may, in its or their sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Notwithstanding any other provision of any other plan, arrangement or agreement to the contrary, including, without limitation, the Plan, subject only to Section C.1. and Section C.2. of this Exhibit 4(b)(i) below, if it shall be made without regard to whether the deductibility of such payments determined that any Payment (or any other payments or benefits to or for the benefit of Executiveas defined below) would will be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code Excise Tax (as defined below), then you shall be entitled to receive an additional cash payment (the “Excise TaxGross-Up Payment”). If any portion ) equal to the sum of the payments Excise Tax payable with respect to any Gross-Up Eligible Payment (as defined below) by you plus an amount such that, after payment by you of all taxes (and any interest or benefits penalties imposed with respect to such taxes), including without limitation, any federal, state, local or for foreign income or employment taxes (and any interest and penalties imposed with respect thereto) on the benefit of Executive (includingGross-Up Payment and the Excise Tax imposed upon the Gross-Up Payment, but excluding any income taxes and penalties imposed on the Gross-Up Eligible Payment itself, you retain an amount of the Gross-Up Payment such that you are in the same after-tax position with respect to the Gross-Up Eligible Payment as if the Excise Tax had not limited to, payments been imposed. For purposes of determining the amount of the Gross-Up Payment (and benefits under this Agreement but determined without regard to this paragraph) constitutes the amount of the Gross-Up Eligible Payment that is an “excess parachute payment” within the meaning of Q&A 38 of Treasury Regulation Section 280G (1.280G-1 and therefore determining what portion of the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “grossGross-up payment”) that after reduction for all taxes (including but not limited Up Eligible Payment is subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect ), notwithstanding anything to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of contrary contained in Section 409A 280G of the Code, your “base amount” (within the manner meaning of Section 280G of the Code) first shall be allocated to any Payments to you that are not Gross-Up Eligible Payments (and time of payment, not otherwise eligible for a tax gross-up under any other agreement between you and the provisions of this Section C.3Company or any Parent, shall be adjusted to the extent necessary (but only to the extent necessarySubsidiary or an affiliate thereof) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penaltiesNon-Gross-Up Eligible Payments”); and further provided) and, that if, notwithstanding only after the immediately preceding proviso, the grossexhaustion of such Non-up payment cannot Gross-Up Eligible Payments shall any portion of your base amount be made to conform allocated to the requirements of Section 409A of Gross-Up Eligible Payment. This analysis in the Code, the amount of the gross-up payment preceding sentence shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to recalculated each time a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityPayment becomes determinable.

Gross-Up Payment. Payments under Section C.1. In the event any payment or benefit arising in connection with Executive’s services to the Corporation, whether payable pursuant to this Agreement or otherwise, and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (including any payment or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G reason of the Code (“Section 280G”) transaction consummated to that certain Agreement and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 Plan of the Code Merger among Blue Acquisition Group, Inc., Blue Merger Sub Inc. and Del Monte Foods Company, dated as of November 24, 2010 (the “Excise Tax”). If any portion Merger Agreement,” and the consummation of the payments or benefits to or for transactions contemplated thereby, the benefit of Executive “Transactions”) (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraphthe “Payment”) constitutes is an “excess parachute payment” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsCode”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited and would be subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of excise tax imposed by Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) 4999 of the Code (the “Section 409A penaltiesExcise Tax”), then the Corporation shall pay Executive an additional cash payment (the “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes, including, without limitation, any income and employment taxes and Excise Tax imposed upon the Gross-Up Payment, Executive shall retain an amount equal to the Excise Tax imposed upon the Payment and the Gross-Up Payment; and further providedprovided that, such Gross-Up Payment shall not be paid if the original Payment exceeds the Section 280G excess parachute payment criteria by less than five percent (5%). In the event the Payment exceeds the Section 280G excess parachute payment criteria by less than five percent (5%), then either (i) the Payment shall be reduced to an amount that ifwould result in no portion of the Payment being subject to the Excise Tax, notwithstanding the immediately preceding provisoor (ii), the gross-up payment cannot Payment shall be made to conform to the requirements of Section 409A paid in full, whichever of the Code, the amount of the grossforegoing (i) or (ii) results in a better after-up payment tax position to Executive. The Gross-Up Payment shall be determined without regard subject to and paid net of any gross-up for the Section 409A penaltiesapplicable withholding. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Gross-Up Payment or Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at reasonably determined by the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”)Company after consultation with its legal and tax advisors. Notwithstanding the foregoing, if any Gross-up Payment must be paid to Executive by the Internal Revenue Service shall assert an end of the calendar year next following the calendar year in which the income taxes and Excise Tax liability that is higher than are remitted to the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityapplicable taxing authority.

Gross-Up Payment. Payments In the event that any payments to which Xx. XxXxxxxxx becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Xx. XxXxxxxxx at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Xx. XxXxxxxxx (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be 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 on such day an estimate, as determined in good faith by the Company, 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, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. 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 Xx. XxXxxxxxx, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Xx. XxXxxxxxx in connection with a Change in Control of the Company or for the benefit termination of Executive Xx. XxXxxxxxx' employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b((1) of the Code shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments, or (b) the 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 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, Xx. XxXxxxxxx shall be deemed 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 and the 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 payments state and local taxes. 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, Xx. XxXxxxxxx shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of (A) Anything in this Exhibit Agreement to the contrary notwithstanding, in the event it shall be made without regard to whether determined that any payment or distribution by the deductibility of such payments (Company, any individual or any other payments entity whose actions result in a Change in Control, or benefits their respective subsidiaries or affiliates to or for the benefit of the Executive (including any payment or benefits received in connection with a Change in Control or the Executive) would be limited or precluded by Section 280G 's termination of employment, whether pursuant to the Code (“Section 280G”) and without regard to whether such payments (terms of this Agreement or any other payments plan, arrangement or benefitsagreement) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G Gross-Up Payment (the aggregate of such payments as defined below), being hereinafter referred to as the “Excess Parachute "Total Payments”") will be subject to any excise tax imposed under section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (such tax, the "Excise Tax"), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-up payment”Up Payment, and after taking into account the phase out of itemized deductions and personal exemptions attributable to the Gross-Up Payment, shall be equal to the Total Payments. (B) that after reduction For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to the Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the "Auditor") (which Tax Counsel may be the Company's general counsel), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under The following provisions shall apply in the event that it is determined that acceleration of the vesting of the stock option awarded to the Executive on September 24, 1996 (the "Stock Option") upon a Change in Control would be subject to the excise tax imposed by Section C.1. and Section C.2. 4999 of this Exhibit the Internal Revenue Code of 1986, as amended (the "Code"): (a) In the event it shall be made determined that acceleration of the vesting of the Stock Option upon a Change in Control would be subject to the excise tax imposed by Section 4999 of the Code, determined without regard to whether the deductibility of such payments any other payment, benefit or distribution (or combination thereof) by the Company, any other payments affiliates of the Company, or benefits one or more trusts established by the Company or any of its affiliates for the benefit of its employees, to or for the benefit of Executivethe Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, or otherwise), the Executive shall be entitled to receive a payment from the Company (a "Gross-Up Payment") would be limited or precluded by Section 280G in an amount equal to the sum of the following amounts: (i) the amount of the excise tax attributable solely to the accelerated vesting of the Stock Option (referred to as the "Excise Tax") and the amount of any additional excise tax under section 4999 of the Code imposed with respect to additional payments, if any, made pursuant to this paragraph (“Section 280G”a); (ii) and without regard to whether such payments (any interest or any other payments or benefits) would subject penalties incurred by the Executive with respect to the federal excise tax levied Excise Tax and other payments, if any, made pursuant to this paragraph (a); and (iii) any taxes, including income taxes, incurred by the Executive on certain “excess parachute the Excise Tax and other payments” , if any, made pursuant to this paragraph (a). (b) Subject to the provisions of paragraph (c) below, all determinations required to be made under this Section 2, including whether and when a Gross-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 a nationally recognized certified public accounting firm as may be designated 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 acceleration of the vesting of the Stock Option, 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 Section 2, shall be paid by the Company to the Executive within five (5) days after the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code 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 (c) and the Executive thereafter is required to make a payment of any Excise Tax”). If any portion , the Accounting Firm shall determine the amount of the payments or benefits 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 ten (10) business days after the Executive is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which 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 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, but not limited towithout limitation, payments 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 benefits under this Agreement but determined without regard to this paragraphpay directly all costs and expenses (including additional interest and penalties) constitutes incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or income tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred to as representation and payment of costs and expenses. Without limitation on the “Excess Parachute Payments”foregoing provisions of this paragraph (c), the Company shall promptly 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 sue xxx 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 sue xxx a refund, the Company shall advance the amount of such payment to the Executive, on an additional amount (interest-free basis, and shall indemnify and hold the “grossExecutive harmless, on an after-up payment”) that after reduction for all taxes tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany imputed income with respect to such advance; and provided, further, that if the Executive is required to extend the statute of limitations to enable the Company to contest such claim, the Executive may limit this extension solely to such contested amount. The Company's control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) If, after the receipt by the Executive of an amount advanced by the Company pursuant to paragraph (c), the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A paragraph (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 paragraph (c), a determination is made that the Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company does not give rise notify the Executive in writing of its intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform be repaid and the amount of such advance shall offset, to the requirements of Section 409A of the Codeextent thereof, the amount of the grossGross-up payment shall Up Payment required to be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitypaid.

Gross-Up Payment. Payments In the event that any payments to which Xx. XxXxxxxxx ---------------- becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Xx. XxXxxxxxx at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Xx. XxXxxxxxx (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be 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 on such day an estimate, as determined in good faith by the Company, 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, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. 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 Xx. XxXxxxxxx, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Xx. XxXxxxxxx in connection with a Change in Control of the Company or for the benefit termination of Executive Xx. XxXxxxxxx'x employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments and (b) the 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 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, Xx. XxXxxxxxx shall be deemed 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 and the 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 payments state and local taxes. 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, Xx. XxXxxxxxx shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state, and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. (i) All payments and Section C.2. of this Exhibit shall benefits provided to Xxxxxxxx by Company are intended to be made without regard to whether reasonable compensation for services by Xxxxxxxx, and the deductibility Company intends that Xxxxxxxx receives the full economic benefit of such payments (and benefits. In the event that it is determined that any payment or any other payments or benefits benefit provided by Company to or for the benefit of Executive) would Xxxxxxxx, either under this Agreement or otherwise, whether paid before or after the date of this Agreement, and regardless of under what plan or arrangement it was made, will be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section imposed by section 4999 of the Code or any successor provision ("section 4999"), Company will, prior to the date on which any amount of the excise tax must be paid or withheld, make an additional lump-sum payment (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “"gross-up payment”") that to Xxxxxxxx. The xxxxx-up payment will be sufficient, after reduction giving effect to all federal, state and other taxes and charges (including interest and penalties, if any) with respect to the gross-up payment, to make Xxxxxxxx whole for all taxes (including but not limited withholding taxes) and any associated interest and penalties, imposed under or as a result of section 4999. (ii) Determination under this 4.04(f) will be made by the Company's tax accountant unless Xxxxxxxx has reasonable objections to the Excise Taxuse of that firm, in which case the determinations will be made by a comparable firm chosen by Xxxxxxxx after consultation with Company (the firm making the determinations to be referred to as the "Firm"). The determinations of the Firm will be binding upon Company and Xxxxxxxx except as the determinations are established in resolution (including by settlement) of a controversy with respect the Internal Revenue Service to have been incorrect. All fees and expenses of the Firm will be paid by Company. (iii) If the Internal Revenue Service asserts a claim that, if successful, would require Company to make a gross-up payment or an additional gross-up payment, Company and Xxxxxxxx will cooperate fully in resolving the controversy with the Internal Revenue Service. Company will make or advance such gross-up payment equals payments as are necessary to prevent Xxxxxxxx from having to bear the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes cost of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be payments made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than in the Excise Tax (if any) determined by the accounting firmcourse of, or as a result of, the controversy. The Firm will determine after resolution of the controversy whether any advances must be returned by Xxxxxxxx to Company. Company will bear all expenses of the controversy and will gross Xxxxxxxx up for any additional taxes that may be imposed upon Xxxxxxxx as a result of its payment of such expenses. (iv) The Company's obligations under this 4.04(f) shall promptly augment survive the gross-up payment to address such higher Excise Tax liabilitytermination of Bertucci's employment and any termination of this Agreement.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up -------- Payment") in an amount such that, after payment by Executive of all ------- Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below zero) so that ---------------- the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) 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. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. 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 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 or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits 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) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company 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 “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income 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 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its sole discretion, may pursue or forgo 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 Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible xxnner, 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 sue for a refund, the Company shall advance the amount ox xuch payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance 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 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 payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax 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 a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) 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 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits received or to or for the benefit of be received by Executive (includingwhether pursuant to Section 4 of this Agreement or any other plan, but not limited to, arrangement or agreement with any System Company) (all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within benefits, excluding the meaning of Section 280G (the aggregate of such payments Gross-Up Payment, being hereinafter referred to as the “Excess Parachute "Total Payments”)") will be subject to the Excise Tax, the Executive's System Company employer shall promptly pay to Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. A. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) all of the Total Payments shall be treated as "parachute payments" (within the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel ("Tax Counsel") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Closing, Executive's System Company employer's independent auditor (the "Auditor"), such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within the meaning of section 280G(b)(l) of the Code shall be treated as subject to the Excise Tax unless, in the opinion of Tax Counsel, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of section 280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax, and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Date of Termination (or if there is no Date of Termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. B. In the event that the Excise Tax is finally deterxxxxd to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, Executive shall repay to Executive's System Company employer, within five (5) business days following the time that the amount of such reduction in the 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 the Excise Tax and a dollar- for-dollar reduction in Executive's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder in calculating the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Executive's System Company employer 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 gross-up payment equals excess) within five (5) business days following the time that the amount of such excess is finally determined. Executive and Executive's System Company employer 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 Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under (a) To the extent that any amounts or payments in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits 280G”)) to or for the benefit of Executive) would be limited the Employee under this Employment Agreement or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”), then the aggregate Company shall pay to the Employee an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payment,” plus any interest and penalties thereon (other than those caused solely by Employee’s action or inaction). Therefore, the effect shall be to maintain the Employee in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Employee is entitled under this Section 11 shall be made not later than April 15 of the taxable year of the Employee next following the taxable year of the Employee in which the Employee receives amounts subject to Section 4999. (b) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Employee of 10% or less, but not more than $200,000, would cause none of the Payments to be “excess parachute payments,” the Employee will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Employee shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to Executive an additional amount clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the “gross-up payment”Payments subject to clause (z) that after reduction for all taxes hereof) and (including but z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not limited payable in cash) to which Treasury Regulation § 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. Any notice given by the Employee pursuant to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and preceding sentence shall take precedence over the provisions of this Section C.3any other plan, shall be adjusted to arrangement or agreement governing the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); Employee’s rights and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard entitlements to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitycompensation.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether determined that any vesting, payment or distribution of any type by the deductibility Company or any of such payments (its Affiliates or any other payments party in a transaction involving the Company or benefits its Affiliates or a party to the transactions contemplated by the Purchase Agreement or the Xxxxxx Xxxxxx Merger Agreement (as defined in the Purchase Agreement) to or for the benefit of ExecutiveEmployee, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Payments”) on or prior to the second anniversary of the Effective Date and that is “contingent” (within the meaning of Treasury Regulation Section 1.280G-1) on the consummation of the transactions contemplated by the Purchase Agreement would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”). If , then Employee shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Employee of all taxes (including any portion interest or penalties imposed with respect to such taxes), including any income taxes, employment taxes and Excise Tax, imposed upon the Gross-Up Payment, Employee retains an amount of the payments or benefits Gross-Up Payment equal to or for the benefit of Executive Excise Tax imposed upon the Payments. All determinations required to be made under this Section 11(a) (including, but not limited towithout limitation, payments and benefits under this Agreement but determined without regard to this paragraphwhether any vesting, payment or distribution (i) constitutes an a “excess parachute payment” within the meaning of Section 280G of the Code and (ii) is contingent on the aggregate consummation of such payments being hereinafter referred to as the “Excess Parachute Payments”)transactions contemplated by the Purchase Agreement) shall be made by the Board acting in good faith and in accordance with commonly accepted practices, the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; providedincluding, that to the extent any gross-up payment would be considered “deferred compensation” for purposes appropriate, the engagement of Section 409A an independent public accounting firm. Payment of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the grossGross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment Up Payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as time that withholding is required in connection with any Payment, provided that the Committee may designate payment of any Gross-Up Payment shall be made prior to a Change the date Employee is to remit the Excise Tax as provided under of Control the Internal Revenue Code of 1986, as amended (the “accounting firmCode”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment or pursuant to address such higher Excise Tax liabilityany judgment or agreement with any taxing authority.

Gross-Up Payment. Payments under (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment or consideration received by Executive from a Group Company (or any Person whose actions result in a change in ownership or effective control or in the ownership of a substantial portion of assets of the Group Companies covered by Section C.1. and 280G(b)(2) of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any Person affiliated with any Group Company or any such Person) in connection with a Change of Control or any other change in ownership or control or substantial portion of assets for purposes of Section C.2. 280G (in each case whether paid or payable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of any additional payments required under this Section 5(a)) (any such payments payment or consideration described in such clauses (i) or any other payments or benefits to or for the benefit of Executive(ii), a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 5(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 5(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee of the Board (or, if there is no such Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive in which event the Company shall bear the costs of retaining such independent accounting firm. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax under Section 5(a), any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (280G(b)(2) of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G(b)(1) of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise TaxTax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), such other payments or benefits (in whole or in part) with respect do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) 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 tax 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 tax 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 gross-up payment equals the Excise Tax with respect to the Excess Parachute Paymentsstate and local taxes; provided, however, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryextent) required to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(BRegulation §409A-3(i)(l)(v) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of under the Code, the amount of the grossGross-up payment Up Payment shall be determined without regard equal to any grossall of the Federal, state and local taxes imposed on Executive as a result of the Excise Tax and Gross-up Up Payment. (e) The Gross-Up Payments provided for in Section 5(a) shall be made in a cash, lump-sum payment to the Section 409A penalties. The determination as to whether Executive (or appropriate taxing authority on Executive’s payments and benefits include Excess Parachute Payments andbehalf) when due but in no event later than the end of the year following the year in which Executive remits the Excise Tax, if sonet of any required tax withholdings, upon the later of (i) the fifth business day following the effective date of termination, or (ii) the calculation of the amount of such paymentsthe Gross-Up Payment under Section 5(b). Any Gross-Up Payment required hereunder that is not made in a timely manner shall bear interest at a rate equal to the prime rate quoted on the date the payment is first overdue by Citibank N.A., New York, New York plus two percent until paid. (f) As a result of the amount uncertainty in the application of any Excise Tax owed with respect theretoSection 280G of the Code at the time of a determination hereunder, and the amount of any gross-up payment shall it is possible that payments will be made at by the Company’s expense Company which should not have been made under Section 4(f) (“Overpayment”) or that additional payments which are not made by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior Company pursuant to a Change of Control Section 5(a) should have been made (the “accounting firmUnderpayment”). Notwithstanding In the foregoing, if event that there is a final determination by the Internal Revenue Service Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined be promptly reimbursed by the accounting firmExecutive to the Company. In the event there is a final determination by the Internal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company to the Executive, together with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code. (g) Amounts which are vested benefits or which Executive is otherwise entitled to receive under any plan, policy, practice or program of or in any contract or agreement with the Company or any other Group Company at or subsequent to the date of termination of Executive’s employment for any reason shall promptly augment the gross-up payment to address be payable in accordance with such higher Excise Tax liabilityplan, policy, practice or program or contract or agreement except as explicitly modified by this Agreement.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provisions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "Severance Payments") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "Total Payments") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("Excise Tax") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"Code"), then the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 9(e), shall be equal to the Total Payments. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (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 selected by the Company's independent auditors and reasonably acceptable to the Executive ("Tax Counsel"), such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (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) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash 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, 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 occurs the Date of Termination (including but not limited or such earlier date on which any payment or benefits becomes subject to the Excise Tax) and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or such earlier date on which any payment or benefits becomes subject to the Excise Tax), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iii) 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that 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 make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) In the event that any payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments or benefits to or for the benefit of Executiveotherwise) would be limited subject (in whole, or precluded part), to the tax (the "Excise Tax") imposed by Section section 280G of the Internal Revenue Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code 1986 (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive "Code") (including, but not limited to, all such payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute called "Total Payments”"), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income or employment taxes and Excise Tax upon the payment provided for by this Section 5, shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any payments or benefits received or to be received by the Executive (whether pursuant to the terms of this Agreement or otherwise) in connection with a "change" described in section 280G(b)(2)(A)(i) of the Code or the Executive's termination of employment shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and reasonably acceptable to the Executive such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, 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)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the amount of excess parachute payments within the meaning of section 280G(b)(1) 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 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, 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 the termination of the Executive's employment (or if there is no such termination, then the date on which the Gross-Up Payment is calculated for purposes of this Section 5(A)), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income 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 initially taken into account hereunder (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross. (B) The Gross-up payment would Payment shall be considered “deferred compensation” made not later than the fifth (5th) day following the date of termination of the Executive's employment (or if there is no such termination, then the date on which the Gross-Up Payment is calculated for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary5(A) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”hereof); and further provided, however, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, if the amount of the gross-up payment shall Gross Up Payment cannot be finally determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of on or before such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firmday, the Company shall promptly augment pay to the gross-up Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment to address which the Executive is clearly entitled and shall pay the remainder of such higher Excise Tax liabilitypayment (together with interest at the rate provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the first required payment date. 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 the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in section 1274(b)(2)(B) of the Code). At the time that payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations, including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such opinions or advice which are in writing shall be attached to the statement).

Gross-Up Payment. Payments under (a) Subject to the possible limitation set forth in Section C.1. and 8.1(b) below, if any payment or benefit received or to be received by Executive in connection with a Corporate Transaction or otherwise (“Payment”) would subject Executive to the excise tax (the “Excise Tax”) imposed by Section C.2. 4999 of this Exhibit the Internal Revenue Code of 1986, as amended (the “Code”), then Executive shall be made entitled to receive an additional payment from the Company, in an amount not to exceed five hundred thousand dollars ($500,000) (the “Gross-Up Payment”), such that after the payment of all taxes (including, without regard limitation, any income or employment taxes, any interest or penalties imposed with respect to whether such taxes, and any additional excise tax imposed by Section 4999 of the deductibility Code) on the Gross-Up Payment, Executive shall retain an amount equal to the full Excise Tax. For purposes of determining the amount of the Gross-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 8.1, the aggregate amount of the Gross-Up Payment shall not exceed five hundred thousand dollars ($500,000). (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 Reduced Amount. The “Reduced Amount” shall be either (i) the largest portion of the Total Parachute Payments that would result in no portion of the Total Parachute Payments being subject to the Excise Tax, or (ii) the largest portion, up to and including the total, 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 Payments equals the Reduced Amount, reduction shall occur in a manner necessary to 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 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 8.1. 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 Company or Executive) or such other time as requested by the Company or Executive. Any good faith determinations of the Accounting Firm made hereunder shall be final, binding and conclusive upon the Company and Executive. (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 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. If the Company exhausts its remedies pursuant to Section 8.1(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 promptly paid by the Company to or for the benefit of Executive. (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 Gross-Up Payment. Such notification shall be limited or precluded by Section 280G 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 Code 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 (“Section 280G”) and without regard 30)-day period following the date on which Executive has given such notice to whether such payments the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”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 portion of information reasonably requested by the payments or benefits Company relating to or for such claim; (ii) Take such action in connection with contesting such claim as the benefit of Executive (Company shall reasonably request in writing from time to time, including, but not limited towithout limitation, payments 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 benefits under this Agreement but determined without regard to this paragraphpay directly all costs and expenses (including additional interest and penalties) constitutes incurred in connection with such contest and shall indemnify and hold Executive harmless, on an “excess parachute payment” within the meaning of Section 280G after-tax basis, for any Excise Tax or federal, state, and local income and employment tax (the aggregate including interest and penalties with respect thereto) imposed as a result of such payments being hereinafter referred to as representation and payment of costs and expenses. Without limitation on the “Excess Parachute Payments”foregoing provisions of this Section 8.1(e), the Company shall promptly 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 additional amount (the “grossinterest-up payment”) that after reduction for all taxes 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 but not limited to the Excise Taxinterest or penalties with respect thereto) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Paymentsany 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 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. (f) If, after the receipt by Executive of any amount paid by the Company relating to a Gross-up Payment pursuant to Section 8.1(a) hereof or advanced by the Company pursuant to Section 8.1(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 8.1(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 8.1(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 any grossthereof, the amount of Gross-up payment would Up Payment required to be considered “deferred compensation” for purposes of paid. (g) If, pursuant to regulations issued under Section 409A 280G or 4999 of the Code, the manner Company and time Executive are required to make a preliminary determination of paymentthe 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, and 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 this Section C.3, shall be adjusted 8.1(e) hereof relating to the extent necessary (but only contesting of a claim shall apply to the extent necessary) to comply with claim for such refund, including, without limitation, the requirements provisions concerning legal representation, cooperation by Executive, participation by the Company in the proceedings and indemnification by the Company. Upon receipt of Section 409A with respect to any such payment so that refund, Executive shall promptly pay the payment does not give rise amount of such refund to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, Company. If the amount of the gross-up income taxes otherwise payable by Executive in respect of the year in which Executive makes such payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination Company is reduced as to whether Executive’s payments and benefits include Excess Parachute Payments anda result of such payment, if soExecutive shall, no later than the filing of the income tax return in respect of such year, pay the amount of such paymentstax 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 Excise Tax owed with respect thereto, and further tax benefits that may be realized by her as a result of paying to the Company the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as initial tax benefit. (h) In the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability event that is higher than 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 anypreviously 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 firmAccounting 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 8.1, which is to make Executive whole on an after-tax basis on account of any Excise Tax (including related interest and penalties) up to an aggregate amount of five hundred thousand dollars ($500,000). Executive and the Company shall promptly augment each have the gross-up payment right at all times to address such higher Excise Tax liabilityhave the Accounting Firm review and confirm or revise earlier calculations.

Gross-Up Payment. Payments In the event that (i) the Employee becomes entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code Internal Revenue of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of this agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b) (2) of the aggregate Code, and all "excess parachute payments" within the meaning of such payments being hereinafter referred to Section 280G(b) (1) shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise Tax) with respect to such gross-up payment equals , unless in the Excise Tax with respect opinion of tax counsel selected by the Company's independent auditors and acceptable to the Excess Parachute Payments; providedEmployee such payments or benefits (in whole or in part) do not constitute parachute payments, that to or such excess payments (in whole or in part) represent reasonable compensation for services actually rendered within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G(b) (4) of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryii) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the grossChange in Control Payments 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 in Control Payments and the Benefit 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-up cash benefits or any deferred payment or benefit shall be determined without regard to any gross-up for by the Section 409A penaltiesCompany's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, For purposes of determining the amount of such paymentsthe Gross-Up Payment, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment Employee shall be made deemed to pay federal income taxes at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change highest marginal rate of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.federal

Gross-Up Payment. Payments under Section C.1. (a) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that: (i) any payment or consideration received by Executive from a Group Company in connection with the Acquisition, including pursuant to Sections 3(g), (i), (j) and Section C.2. (k) of this Exhibit shall be made Agreement or (ii) any payment or consideration received by Executive from a Group Company (or any Person whose actions result in a change in ownership or effective control or in the ownership of a substantial portion of assets of the Group Companies covered by Section 280G(b)(2) of the Internal Revenue Code of 1986 of the United States, as amended (the “Code”), or any Person affiliated with any Group Company or any such Person) in connection with a Change of Control or any other change in ownership or control or substantial portion of assets for purposes of Section 280G that occurs after an IPO (in each case whether paid or payable or pursuant to the terms of this Agreement or otherwise, but determined without regard to whether the deductibility of any additional payments required under this Section 5(a)) (any such payments payment or consideration described in such clauses (i) or any other payments or benefits to or for the benefit of Executive(ii), a “Payment”) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code Code, or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties are hereinafter collectively referred to as the “Excise Tax”). If any portion , the Company shall pay to Executive at the time specified in Section 5(e) below an additional amount (a “Gross-Up Payment”) such that the net amount of the Gross-Up Payment retained by Executive, after deduction of all federal, state and local income tax (and any interest and penalties imposed with respect thereto), employment tax and Excise Tax on the Gross-Up Payment, shall be equal to the amount of the Excise Tax imposed on such Payment. (b) For purposes of the foregoing Section 5(a), the proper amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined in the first instance by the Company. Such determination by the Company shall be promptly communicated in writing by the Company to Executive. Within 10 days of being provided with written notice of any such determination, Executive may provide written notice to the Compensation Committee of the Board (or, if there is no such Compensation Committee, the Board) of any disagreement, in which event the amounts, if any, of the Excise Tax and the Gross-Up Payment shall be determined by an independent accounting firm mutually selected by the Company and Executive in which event the Company shall bear the costs of retaining such independent accounting firm. The determination of the Company (or in the event of disagreement, the accounting firm selected) shall be final and nonreviewable. (c) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such Excise Tax under Section 5(a), any payments or benefits received or to or for the benefit be received by Executive in connection with a termination of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an employment shall be treated as “excess parachute paymentpayments” within the meaning of Section 280G (280G(b)(2) of the aggregate Code, and all “excess parachute payments” within the meaning of such payments being hereinafter referred to Section 280G(b)(1) of the Code shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise TaxTax unless the Company or the accounting firm selected above, as applicable, determines based on reasonable, good faith interpretations concerning the application of Sections 280G and 4999 of the Code, with substantial authority (within the meaning of Section 6662 of the Code), such other payments or benefits (in whole or in part) with respect do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code in excess of the base amount within the meaning of Section 280G(b)(3) of the Code. (d) 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 tax 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 tax 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 gross-up payment equals the Excise Tax with respect to the Excess Parachute Paymentsstate and local taxes; provided, however, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryextent) required to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(BRegulation §409A-3(i)(l)(v) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of under the Code, the amount of the grossGross-up payment Up Payment shall be determined without regard equal to any gross-up for all of the Section 409A penalties. The determination Federal, state and local taxes imposed on Executive as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, a result of the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any grossGross-up payment Up Payment. (e) The Gross-Up Payments provided for in Section 5(a) shall be made in a cash, lump-sum payment to Executive (or appropriate taxing authority on Executive’s behalf) when due but in no event later than the end of the year following the year in which Executive remits the Excise Tax. Any Gross-Up Payment required hereunder that is not made in a timely manner shall bear interest at a rate equal to the prime rate quoted on the date the payment is first overdue by Citibank N.A., New York, New York plus two percent until paid. (f) As a result of the uncertainty in the application of Section 280G of the Code at the Company’s expense time of a determination hereunder, it is possible that payments will be made by PricewaterhouseCoopers LLP the Company which should not have been made under Section 5(a) (“Overpayment”) or that additional payments which are not made by such other certified public accounting firm as the Committee may designate prior Company pursuant to a Change of Control Section 5(a) should have been made (the “accounting firmUnderpayment”). Notwithstanding In the foregoing, if event that there is a final determination by the Internal Revenue Service Service, or a final determination by a court of competent jurisdiction, that an Overpayment has been made, any such Overpayment shall assert an Excise Tax liability that be promptly reimbursed by Executive to the Company. In the event there is higher than the Excise Tax (if any) determined a final determination by the accounting firmInternal Revenue Service, a final determination by a court of competent jurisdiction or a change in the provisions of the Code or regulations pursuant to which an Underpayment arises under this Agreement, any such Underpayment shall be promptly paid by the Company shall promptly augment to Executive, together with interest at the gross-up payment to address such higher Excise Tax liabilityapplicable federal rate provided for in Section 7872(f)(2) of the Code.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3C.2, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments (a) In the event that the Executive becomes ---------------- entitled to any payments under Section C.1. and 5 or Section C.2. 8 of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement, or under any other payments agreement, plan or benefits to or arrangement for the benefit making of Executive) would be limited payments to the Executive upon a Change in Control or precluded by Section 280G upon the termination of employment caused by, subsequent to, or otherwise with respect to a Change in Control (together, the "Total Benefits"), and in the event that any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to the Total Benefits. If no payment is due Executive upon a Change of Control under Section 5 of this Agreement, no payment shall be made under this Section 6. (b) 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G9d)(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). (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 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. (d) If Executive is entitled to any other payments or benefits in connection with a Change in Control or the termination of Executive's employment, the amount as referred to in clause (b) of any Excise Tax owed with respect theretothis Section 6, otherwise than those payable under this Agreement (collectively, "Other Arrangements"), and the amount if any of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior those Other Arrangements are subject to a Change limitation designed to prevent payments under them from being "parachute payments" or "excess parachute payments" within the meaning of Control the provisions of the Code referred to in clause (b) of this Section 6 through an express reference to such limitations in the “accounting firm”). Notwithstanding the foregoingCode, then, if the Internal Revenue Service any amount is payable to Executive under Section 5 of this Agreement, such limitations shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment no longer be deemed to address such higher Excise Tax liabilitybe effective for any purpose of those Other Arrangements or in making calculations under this Section 6.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provisions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "SEVERANCE PAYMENTS") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "TOTAL PAYMENTS") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("EXCISE TAX") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"CODE"), then the Company shall promptly pay to the Executive an additional amount (the “gross"GROSS-up payment”UP PAYMENT") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the payment provided for by this Section 8(e), shall be equal to the Total Payments. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (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 selected by the Company's independent auditors and reasonably acceptable to the Executive ("TAX COUNSEL"), such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (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) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash 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, 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 occurs the Date of Termination (including but not limited or such earlier date on which any payment or benefit becomes subject to the Excise Tax) and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or such earlier date on which any payment or benefit becomes subject to the Excise Tax), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iii) 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that 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 make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments (a) If the payments and benefits provided to Employee under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or under any other payments agreement with, or benefits to or for plan of, the benefit of ExecutiveCompany (the "Total Payment") would be limited or precluded by (i) constitute a "parachute payment" as defined in Section 280G of the Code and exceed three times Employee's "base amount" as defined under Code Section 280G(b)(3) by less than 10% of three times Employee's base amount, and (“ii) would, but for this Section 280G”) and without regard to whether such payments (or any other payments or benefits) would 3.4(a), be subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Code Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including4999, but not limited to, then Employee's payments and benefits under this Agreement but shall be either (A) paid in full, or (B) reduced and payable only as to the maximum amount which would result in no portion of such payments and benefits being subject to excise tax under Code Section 4999, whichever results in the receipt by Employee on an after-tax basis of the greatest amount of Total Payment (taking into account the applicable federal, state and local income taxes, the excise tax imposed by Code Section 4999 and all other taxes (including any interest and penalties) payable by Employee). If a reduction of the Total Payment is necessary, Employee shall be entitled to select which payments or benefits will be reduced and the manner and method of any such reduction of such payments and benefits. Within 30 days after the amount of any required reduction in payments and benefits is finally determined without regard under Section 3.4(c), Employee shall notify the Company in writing regarding which payments and benefits are to be reduced. If no notification is given by Employee, the Company will determine which payments and benefits to reduce. If, as a result of any reduction required by this paragraphSection 3.4(a), amounts previously paid to Employee exceed the amount to which Employee is entitled, Employee will promptly return the excess amount to the Company. (b) If the Total Payment constitutes an “excess a "parachute payment” within the meaning of " as defined in Code Section 280G (the aggregate and exceeds three times Employee's "base amount" as defined under Code Section 280G(b)(3) by 10% or more of such payments being hereinafter referred to as the “Excess Parachute Payments”)three times Employee's base amount, the Company shall promptly pay provide to Executive Employee, in cash, an additional payment in an amount (to cover the “gross-up payment”) that after reduction for all full excise tax due under Code Section 4999, plus Employee's state and federal income, employment, excise, and other taxes (including but not limited to interest and penalties) on this additional payment (the Excise Tax) with respect to such gross"Gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of Up Payment"). Any amount payable under this Section C.3, 3.4(b) shall be adjusted to paid as soon as possible following the extent necessary (date of Employee's termination, but only to the extent necessary) to comply with the requirements of Section 409A with respect to in no event later than 30 days after such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitydate.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced (but not below zero) so that the ---------------- Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Debtor's or the Reorganized Entity's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Debtor or the Reorganized Entity and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Debtor or the Reorganized Entity. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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 Debtor or the Reorganized Entity. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Debtor or the Reorganized Entity to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Debtor or the Reorganized Entity 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 that will not have been made by the Debtor or the Reorganized Entity should have been made (the "Underpayment"), consistent with the calculations required to be made ------------ hereunder. In the event the Debtor or the Reorganized Entity exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments 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 Debtor or benefits the Reorganized Entity to or for the benefit of Executive. (c) The Executive shall notify the Debtor or the Reorganized Entity in writing of any claim by the Internal Revenue Service that, if successful, would be limited require the payment by the Debtor or precluded by Section 280G the Reorganized Entity of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Debtor or the Reorganized Entity of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Debtor or the Reorganized Entity (or such shorter period ending on the date that any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 payment of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) Taxes with respect to such grossclaim is due). If the Debtor or the Reorganized Entity notifies Executive in writing prior to the expiration of such period that the Debtor or the Reorganized Entity desires to contest such claim, Executive shall: (i) give the Debtor or the Reorganized Entity any information reasonably requested by the Debtor or the Reorganized Entity relating to such claim, (ii) take such action in connection with contesting such claim as the Debtor or the Reorganized Entity shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Debtor or the Reorganized Entity, (iii) cooperate with the Debtor or the Reorganized Entity in good faith in order effectively to contest such claim, and (iv) permit the Debtor or the Reorganized Entity to participate in any proceedings relating to such claim; provided, however, that the Debtor or the Reorganized Entity 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-up payment equals the tax basis, for any Excise Tax or income 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 6.4(c), the Debtor or the Reorganized Entity shall control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, 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 Debtor or the Reorganized Entity shall determine; provided, however, that, if the Debtor or the Reorganized Entity direct or directs Executive to pay such claim and xxx for a refund, the Debtor or the Reorganized Entity 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) 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 Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Debtor's or the Reorganized Entity's control of the contest shall be limited to issues with respect to which the 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 a Gross-Up Payment or an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of Debtor's or the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Reorganized Entity's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Debtor or the Reorganized Entity 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 Debtor or the Reorganized Entity pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Debtor or the Reorganized Entity do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Debtor or the Reorganized Entity may, in its or their sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced ---------------- (but not below zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm shall provide --------------- detailed supporting calculations both to the Company and Executive within fifteen (15) 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. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Company to Executive within five (5) business days of the receipt of the Accounting Firm's determination. 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 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 6.4(c) and Executive thereafter is required to make a payment of any other payments or benefits 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) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would be limited or precluded require the payment by Section 280G the Company of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Company of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Company (or such shorter period ending on the date that any other payments or benefits) would subject Executive payment of Taxes with respect to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”such claim is due). If any portion of the payments or benefits Company notifies Executive in writing prior to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate expiration of such payments being hereinafter referred period that the Company 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 “Excess Parachute Payments”Company shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, (iii) cooperate with the Company in good faith in order effectively to contest such claim, and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest, and shall indemnify and hold Executive harmless, on an after-tax basis, for any Excise Tax or income 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 6.4(c), the Company shall promptly control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, either direct Executive to pay the tax claimed and sue 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 direct or directs Executive to pay such claim and sue for a refund, the Company shall advance the amount of xxxh payment to Executive, on an additional amount (the “grossinterest-up payment”) that after reduction for all taxes free basis, and shall indemnify and hold Executive harmless, on an after-tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest or penalties) imposed with respect to such grossadvance 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 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 payment equals Up Payment would be payable hereunder, and Executive shall be entitled to settle or contest, as the Excise Tax 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 a Gross-Up Payment or an amount advanced by the Company pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Company's complying with the requirements of Section 409A 6.4(c), if applicable) 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 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Company do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Company may, in its sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“"Section 280G”") and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “"excess parachute payments” " under Section 4999 of the Code (the “"Excise Tax”"). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “"excess parachute payment” " within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “"Excess Parachute Payments”"), the Company shall promptly pay to Executive an additional amount (the “"gross-up payment”") that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s 's payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s 's expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “"accounting firm”"). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard In the event that the Executive becomes ---------------- entitled to whether the deductibility of such payments (Severance Benefits or any other benefits or payments under Section 2 of this Agreement (other than pursuant to this Section 2.6(C)) or benefits to the KESOP or for the benefit of Executive) would be limited or precluded DSOP by Section 280G reason of the Code accelerated vesting of stock options thereunder (“Section 280G”) together, the "Total Benefits"), and without regard to whether such payments (or in the event that any other payments or benefits) would of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Taxes and FICA Medicare withholding taxes upon the payment provided for by this Section 2.6(C), 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 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, 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 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 the 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) Whether or not Executive becomes entitled to the Severance Payments, if any payments or benefits received or to be received by Executive whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments plan, arrangement or benefits to agreement with the Company, or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (with any Person whose actions result in a Change in Control or any other Person affiliated with the Company or such Person (such payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code Gross-Up Payment (the “Excise Tax”as defined below). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Total Payments”) are subject to the Excise Tax (any excise tax imposed under Section 4999 of the Code ), the Company shall promptly pay to Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (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, (i) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Code Section 280G(b)(2)) unless, in the opinion of the Company, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Code Section 280G(b)(4)(A), (ii) all “excess parachute payments” within the meaning of Code Section 280G(b)(1) shall be treated as subject to the Excise Tax unless, in the opinion of the Company, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of Code Section 280G(b)(4)(B)) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company in accordance with the principles of Code Section 280G(d)(3) and (4). The Company and Executive agree that the determinations described in this Section 4.2(B) shall take the form of a letter from the Company accompanied by calculations prepared by the Company and certified by a national accounting firm selected by the Company. (C) The Gross-Up Payment (or portion thereof) will be paid to Executive on the day of the payment of the Total Payments (or portion thereof) that give rise to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment (or portion thereof) cannot be fully determined on or before the date on which payment is due, the Company will pay to Executive by such date an amount estimated in good faith by the Company to be the minimum amount of such Gross-Up Payment (or portion thereof) and will pay the remainder of such Gross-Up Payment (or portion thereof) (together with interest at the rate provided in Code Section 1274(b)(2)(B)) as soon as the amount thereof can be determined, but in no event later than 45 days after complete payment of the Total Payments. Further, in the event that on the day of payment of the Total Payments (or portion thereof) (or the 45-day period following such payments), no Gross-Up Payment (or portion thereof) is determined by the Company to be due and it is subsequently determined that a Gross-Up Payment (or portion thereof) is owing to Executive, such Gross-Up Payment (or portion thereof) will be made by the Company to Executive at the date that such Gross-Up Payment amount (or portion thereof) is determined by the Company to be payable to Executive. (D) 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, within five business days following the later of the date that the amount of such reduction in the Excise Tax is fully determined and the date that such amount is fully refunded to Executive by the Internal Revenue Service, 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 the Excise Tax and a dollar-for-dollar reduction in Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes. In the event that the Excise Tax is determined to exceed the amount originally remitted by Executive which was taken into account hereunder in calculating the Gross-Up Payment and Executive is obliged to remit additional Excise Taxes, Executive shall provide the Company with written notice advising as to the amount of additional Excise Taxes which were so remitted and the date on which they were so remitted. As soon as practicable following receipt of such notice (but not later than the end of the taxable year following the year in which the additional Excise Taxes were remitted by Executive), the Company 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 gross-up payment equals excess Excise Taxes). Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Whether or not the Executive becomes entitled to the payment provided under subsection (d) hereof, if any of the Total Payments under Section C.1. (as hereinafter defined) will be subject to the tax (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), the Company shall pay to the Executive, no later than the fifth day following the Date of Termination (or such other date as is hereinafter described), an additional amount (the "Gross-Up Payment") such that the net amount retained by him, after deduction of any Excise Tax on the Total Payments and Section C.2. of this Exhibit any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be made without regard equal to the Total Payments. For purposes of determining whether any of the deductibility Total Payments will be subject to the Excise Tax and the amount of such payments Excise Tax, (or any other i) all payments or benefits received or to be received by the Executive in connection with a Change in Control or for the benefit termination of the Executive's employment (whether payable pursuant to the terms of this Agreement or of any other plan, arrangement or agreement with the Company, its successors, any person whose actions 8 result in a change in control or any person affiliated (or which, as a result of the completion of the transactions causing a Change in Control, will become affiliated) would be limited with the Company or precluded by Section 280G such person within the meaning of section 1504 of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingGross-Up Payments, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute "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 selected by the independent auditors of the Company (as of the date immediately prior to the Change in Control) and reasonably acceptable to the Executive, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" (within the meaning of section 280G(b)(1) of the Code) shall be treated as subject to the Excise Tax, unless in the opinion of such tax counsel such excess parachute payments represent reasonable compensation for services actually rendered (within the meaning of section 280G(b)(4)(B) of the Code) in excess of the "base amount" (within the meaning of section 280G(b)(3) of the Code), or are not otherwise subject to the Excise Tax, and (iii) the value of any noncash 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, 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 and employment taxes at the highest marginal rate of taxation in the state and locality of the residence of the Executive on the Date of Termination (or such other date as is hereinafter described), net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination (or such other date as is hereinafter described), the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax or a federal, state and local income and employment taxes deduction) plus interest on the amount of such repayment at 120% of the applicable federal rate (as defined in section 1274(d) 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 employment of the Executive, or at such other time as is hereinafter described (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 promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes payment in respect of such excess (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. If an Executive who remains in the employ of the Company becomes entitled to the payment provided for by this paragraph, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up such payment shall be made at no later than the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as later of (x) the Committee may designate prior fifth day following the date on which the Executive notifies the Company that he is subject to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax and (if anyy) determined by ten days prior to the accounting firm, date on which the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityis initially due.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event that it shall be made without regard to whether determined at any time that the deductibility of such payments payment provided under paragraph 8(d) above (the "Contract Payment") or any other payments payment or benefits to or for distribution by the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive Company to the federal excise Executive (including deemed payments arising from accelerated vesting of stock options) is subject to the tax levied on certain “excess parachute payments” under Section (the "Excise Tax") imposed by section 4999 of the Internal Revenue Code (the “Excise Tax”). If any portion of 1986, as amended, Section 11.5 of the payments Company's 1997 Employee Stock Option Plan or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess similar "parachute payment” within " limitations under any other agreement between the meaning of Section 280G (Company and the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”)Executive that are in effect shall not apply, and the Company shall promptly pay to the Executive an additional amount (the “gross-up payment”"Gross- Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Contract Payment and such other Total Payments (as defined below) and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be equal to the Contract Payment and such other Total Payments. For purposes of determining whether any of the payments 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 of the Company or the Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a change in control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a change in control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all taxes (including but not limited "excess parachute payments" within the meaning of section 280G(b)(1) 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 the Executive the Total Payments (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 either in their entirety or 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 Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total 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 deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of sections 280G(b)(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 determination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of payment of the Gross-Up Payment, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(d) 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 payment of the Gross-Up Payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. If there is a change in ownership or control of MF Global that causes any payment or distribution by any member of the MF Global Group or any other person or entity to you or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Exhibit shall be made Agreement or otherwise, but determined without regard to whether the deductibility of such any additional payments required under this Section 9) (or any other payments or benefits a "Payment") to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code (such excise tax, together with any interest or penalties incurred by you with respect to such excise tax, the “"Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"), the Company then you shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by you of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, you will retain an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if it is determined that you are entitled to a Gross-Up Payment but that the Internal Revenue Service shall assert an Payments would not be subject to the Excise Tax liability if the Payments were reduced by an amount that is higher less than 10% of the Payments, then the Payments will be reduced to the maximum amount that would not result in the imposition of the Excise Tax (the "Safe Harbor Amount"). If a reduction in the Payments is necessary so that the Payments equal the Safe Harbor Amount and none of the Payments is Nonqualified Deferred Compensation, then the reduction shall occur in the manner you elect in writing prior to the date of payment. If any Payment constitutes Nonqualified Deferred Compensation or if any) you fail to elect an order, then the payments to be reduced will be determined by in a manner which has the accounting firmleast economic cost to you and, to the Company shall promptly augment extent the gross-up economic cost is equivalent, will be reduced in the inverse order of when payment would have been made to address such higher Excise Tax liabilityyou, until the reduction is achieved.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit (a) In the event it shall be made without regard to whether the deductibility determined that any payment or distribution of such payments (or any other payments or benefits type to or for the benefit of the Executive, by the Employer, the Corporation, any Affiliate, any Person (as defined in Section 17.6(a) would be limited hereof) who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Corporation or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Corporation’s assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or under any other plan, program, policy or arrangement of the Corporation, the Employer or any of their Affiliates (the aggregate “Total Payments”), 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 payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute PaymentsExcise Tax”), then the Company Executive shall promptly pay be entitled to Executive receive an additional amount payment (the a “grossGross-up paymentUp Payment”) in an amount such that after reduction for payment by the Executive of all taxes (including but any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Total Payments in respect of the Executive of 10% or less would cause no Excise Tax to be payable, the Executive will not limited be entitled to a Gross-Up Payment and the Total Payments shall be reduced to the extent necessary so that the Total Payments shall not be subject to the Excise Tax) with respect to such gross-up payment equals . Unless the Excise Tax with respect Executive shall have given prior written notice to the Excess Parachute Payments; providedEmployer 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 the 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. Any notice given by the Executive pursuant to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and preceding sentence shall take precedence over the provisions of this Section C.3any other plan, shall be adjusted to arrangement or agreement governing the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); Executive’s rights and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard entitlements to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilitycompensation.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard In the event that the Executive becomes ---------------- entitled to whether the deductibility of such payments (Severance Benefits or any other benefits or payments under Section 2 of this Agreement (other than pursuant to this Section 2.6(C)) or benefits to the KESOP or for the benefit of Executive) would be limited or precluded DSOP by Section 280G reason of the Code accelerated vesting of stock options thereunder (“Section 280G”) together, the "Total Benefits"), and without regard to whether such payments (or in the event that any other payments or benefits) would of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax, Excise Taxes and FICA and Medicare withholding taxes upon the payment provided for by this Section 2.6(C), 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 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, 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 -188- 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 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 the 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments In the event Executive becomes entitled to benefits under Section C.1. 4.01 or Article 5 hereof, the Company shall pay to Executive an additional lump sum payment (the "Gross-Up Payment"), in cash, equal to the sum of the amounts, if any, described in paragraphs (a) and Section C.2. of this Exhibit (b) below: (a) Executive shall be made 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 4.01(d) or 4.01(e), to the extent such payments or coverage are provided in respect of benefits or coverage which, if provided to Executive while employed by the Company, would not have been taxable to Executive, and (ii) an additional amount such that after payment by Executive of all of Executive's applicable federal, state and local taxes on such additional amount, Executive will retain an amount sufficient to pay 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 Treasury Department under Code Section 1274(d) for the month in which the Gross-Up Payment is made, assuming that all taxes will be paid on the due date therefore (without regard to whether extensions). (b) If any portion of the deductibility of such payments (Severance Benefits or any other payments payment under this Agreement, or benefits under any other agreement with or plan of the Company, including but not limited to or for stock options and other long-term incentives (in the benefit of Executiveaggregate "Total Payments") would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (the “Excise Tax”). If such excise tax, together with any portion of the payments or benefits to or for the benefit of Executive (includingsuch interest and penalties, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being are hereinafter collectively referred to as the “Excess Parachute Payments”"Excise Tax"), the Company then Executive shall promptly pay be entitled under this paragraph to Executive an additional amount (the “gross-up payment”) such that after reduction for payment by Executive of all taxes (of Executive's applicable federal, state and local taxes, including but not limited to the any Excise Tax) with respect , imposed upon such additional amount, Executive will retain an amount sufficient to such gross-up payment equals pay the Excise Tax with respect to imposed on the Excess Parachute Total Payments; provided, that to . The amounts payable under this Section 6.01 shall be paid by the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A Company as soon as practicable (but in no event more than 30 days) after the occurrence of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give events giving rise to the interest Executive's right to benefits under Section 4.01 or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityArticle 5.

Gross-Up Payment. Payments In the event that (i) the Employee becomes entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of this agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 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 Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Employee 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 aggregate meaning of Section 280G(b)(4) of the Code, (ii) the amount of the Change in Control Payments 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 in Control Payments and the Benefit 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 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, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such payments being hereinafter referred state and local taxes. In the event that the Excise Tax is subsequently determined to as be less than the “Excess Parachute Payments”amount taken into account hereunder at the time of termination of the Employee's employment, the Employee shall repay to the Company at that time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address the Employee in respect of such higher Excise Tax liabilityexcess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. Payments under (a) In the event it is determined that the payments and benefits that Executive receives pursuant to Section C.1. 5.4(b)(i) and Section C.2. 5.4(b)(ii) of this Exhibit the Agreement (collectively, the “Protected Severance”) are equal to or less than the Safe Harbor Amount (as defined below), then the Executive shall be made without regard to whether not receive any Gross-Up Payment (as defined below). (b) In the deductibility event that it is determined that both (i) there is an Excise Tax (as defined below) and (ii) the Protected Severance is greater than the Safe Harbor Amount then the Accounting Firm (as defined below) shall determine the amount of such payments (or any other the Excise Tax as if the Protected Severance was the only payments or benefits subject to the Excise Tax, and, within ten (10) days after such determination or for final determination, as the benefit of Executive) would be limited or precluded by Section 280G of case may be, Wendy’s shall pay to the Code (“Section 280G”) and without regard to whether such payments Executive (or any other payments or benefits) would subject Executive to the federal excise tax levied applicable taxing authority on certain “excess parachute payments” under Section 4999 of the Code Executive’s behalf) an additional cash payment (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute PaymentsGross-Up Payment”) equal to an amount such that after payment by the Executive of all taxes, interest, penalties, additions to tax and costs imposed or incurred with respect to the Gross-Up Payment (including, without limitation, any income and excise taxes (but excluding any excise taxes imposed under Section 409A(as defined below) imposed upon the Gross-Up Payment), the Company Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such Protected Severance. For the avoidance of doubt, the Gross-Up Payment, if any, shall promptly pay only be made on the excess, if any, of the Protected Severance over the Base Amount (as defined below). This provision is intended to put the Executive an additional amount (in the “gross-up payment”) that after reduction for all taxes (same position as the Executive would have been in had no Excise Tax been imposed upon or incurred solely as a result of the Protected Severance but not with respect to any payments or benefits made other than the Protected Severance, including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(45.4(b)(iii) of the Code (Agreement. Annex A provides examples of how the “Section 409A penalties”); Gross-Up Payment shall be calculated and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canis provided for illustrative purposes only.1 _________________________ 1 Annex A will not be made to conform to filed with the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up Agreement and is for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityillustrative purposes only.

Gross-Up Payment. Payments (i) To the extent that any (a) severance payment, (b) transaction or other bonus payment, (c) payment under any transaction or other incentive plan, (d) payment related to equity or made under an equity incentive program, or (e) other amounts or payments of any type or kind whatsoever, in the nature of compensation (within the meaning of Section C.1. 280G of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (“Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (280G”)) or any other payments or benefits otherwise to or for the benefit of Executive) would be limited the Executive under this Agreement, or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments any other agreement or plan, or otherwise (or any part of such amount or other payments or benefitspayment) would subject Executive to the federal excise tax levied on certain (collectively, “excess parachute payments” under Section 4999 of the Code (the “Excise TaxPayments”). If , in any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) case constitutes an “excess parachute payment” within the meaning of Section 280G and Section 4999 of the Internal Revenue Code (“Section 4999”). then the aggregate Company shall pay to the Executive an additional sum (“Gross-Up Payment”) such that, after all taxes applicable to the receipt of such payments being hereinafter referred amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to as the “Excess Parachute Payments”excess parachute payments,” plus any interest and penalties thereon (other than those caused solely by Executive’s action or inaction). Therefore, the effect shall be to maintain the Executive in the same financial position that he would have been in had no tax under Section 4999 been imposed. All payments and reimbursements to which the Executive is entitled under this Section 11 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. (ii) Notwithstanding the immediately preceding paragraph, in the event that a reduction to the Payments in respect of the Executive of 10% or less, but not more than $250,000, would cause none of the Payments to be “excess parachute payments,” the Executive will not be entitled to a Gross-Up Payment and the Payments shall be reduced to the extent necessary so that none of the Payments shall be “excess parachute payments.” Unless the Executive shall have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall promptly pay reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation § 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. Any notice given by the Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited pursuant to the Excise Taxpreceding sentence shall take precedence over the provisions of any other plan, arrangement or agreement governing the Executive’s rights and entitlements to any benefits or compensation. (iii) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the The provisions of this Section C.311 shall expire, and shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest no further force or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further providedeffect, that ifon December 31, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability2010.

Gross-Up Payment. Payments If at any time or from time-to-time, it shall be determined by tax counsel mutually agreeable to Employer and Employee that any payment or other benefit to pursuant to this Agreement or otherwise (“Potential Parachute Payment”) is or will become subject to the excise tax imposed by Section 4999 of the Code or any similar tax (“Excise Taxes”), then Employer shall, subject to the limitations below, pay or cause to be paid a tax gross-up payment (“Gross-Up Payment”) with respect to all such Excise Taxes and other taxes on the Gross-Up Payment. The Gross-Up Payment shall be an amount equal to the product of (a) the amount of the Excise Taxes multiplied by (b) a fraction (the “Gross-Up Multiple”), the 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 the Gross-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 C.1. and Section C.2. 409A of the Code shall not be considered “any similar tax” for purposes of this Exhibit Agreement. (a) To the extent possible, any payments or other benefits to Employee pursuant to this Agreement shall be allocated as consideration for Employee’s entry into the covenants made by him in Section 6(e). (b) Notwithstanding any other provisions of this Section 10, if the aggregate After-Tax Amount (as defined below) of the Potential Parachute Payments and Gross-Up Payment that, but for this limitation, would be payable to Employee, does not exceed 120% of After-Tax Floor Amount (as defined below), then no Gross-Up Payment shall be made without regard to whether Employee and the deductibility aggregate amount of such payments Potential Parachute Payments payable to Employee shall be reduced (or but not below the Floor Amount) to the largest amount which would both (i) not cause any other payments or benefits Excise Tax to or for the benefit be payable by Employee and (ii) not cause any Potential Parachute Payments to become nondeductible by Employer by reason of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would successor provision). For purposes of the preceding sentence, Employee shall be deemed to be subject Executive to the federal excise highest effective after-tax levied on certain “excess parachute payments” under Section 4999 marginal rate of the Code (the “Excise Tax”)taxes. If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for For purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Agreement:

Gross-Up Payment. Payments under Section C.1(a) Anything in this Agreement to the contrary notwithstanding and except as set forth below, in the event it shall be determined that any Payment would be subject to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up Payment") ---------------- in an amount such that, after payment by Executive of all Taxes (and any interest or penalties imposed with respect to such Taxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. and Section C.2. Notwithstanding the foregoing provisions of this Exhibit Section 6.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made without regard to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be reduced ---------------- (but not below zero) so that the Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Subject Payments would not result in a reduction of the Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 6.4(a), and the Gross-Up Payment shall be made to Executive. The Debtor's or the Reorganized Entity's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the provisions of Section 6.4(c), all determinations required to be made under this Section 6.4, including whether and when a Gross-Up Payment is required, the deductibility amount of such payments Gross-Up Payment and the assumptions to be utilized in arriving at such determination, shall be made by Ernst & Young, LLP, or such other nationally recognized certified public accounting firm as may be designated by Executive (the "Accounting Firm"). The Accounting Firm --------------- shall provide detailed supporting calculations both to the Debtor or the Reorganized Entity and Executive within fifteen (15) business days of the receipt of notice from Executive that there has been a Payment or such earlier time as is requested by the Debtor or the Reorganized Entity. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the Change of Control, Executive may appoint another nationally recognized 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 Debtor or the Reorganized Entity. Any Gross-Up Payment, as determined pursuant to this Section 6.4, shall be paid by the Debtor or the Reorganized Entity to Executive within five (5) business days of the receipt of the Accounting Firm's determination. Any determination by the Accounting Firm shall be binding upon the Debtor or the Reorganized Entity 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 that will not have been made by the Debtor or the Reorganized Entity should have been made (the "Underpayment"), consistent with the calculations required to be made ------------ hereunder. In the event the Debtor or the Reorganized Entity exhausts its or their remedies pursuant to Section 6.4(c) and Executive thereafter is required to make a payment of any other payments 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 Debtor or benefits the Reorganized Entity to or for the benefit of Executive. (c) The Executive shall notify the Debtor or the Reorganized Entity in writing of any claim by the Internal Revenue Service that, if successful, would be limited require the payment by the Debtor or precluded by Section 280G the Reorganized Entity of the Code Gross-Up Payment. Such notification shall be given as soon as practicable, but no later than ten (“Section 280G”10) business days after Executive is informed in writing of such claim. The Executive shall apprise the Debtor or the Reorganized Entity of the nature of such claim and without regard the date on which such claim is requested to whether be paid. The Executive shall not pay such payments claim prior to the expiration of the thirty (30) calendar day period following the date on which Executive gives such notice to the Debtor or the Reorganized Entity (or such shorter period ending on the date that any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 payment of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) Taxes with respect to such grossclaim is due). If the Debtor or the Reorganized Entity notifies Executive in writing prior to the expiration of such period that the Debtor or the Reorganized Entity desires to contest such claim, Executive shall: (i) give the Debtor or the Reorganized Entity any information reasonably requested by the Debtor or the Reorganized Entity relating to such claim, (ii) take such action in connection with contesting such claim as the Debtor or the Reorganized Entity shall reasonably request in writing from time to time, including accepting legal representation with respect to such claim by an attorney reasonably selected by the Debtor or the Reorganized Entity, (iii) cooperate with the Debtor or the Reorganized Entity in good faith in order effectively to contest such claim, and (iv) permit the Debtor or the Reorganized Entity to participate in any proceedings relating to such claim; provided, however, that the Debtor or the Reorganized Entity 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-up payment equals the tax basis, for any Excise Tax or income 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 6.4(c), the Debtor or the Reorganized Entity shall control all proceedings taken in connection with such contest, and, at its or their sole discretion, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the applicable taxing authority in respect of such claim and may, at its or their sole discretion, 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 Debtor or the Reorganized Entity shall determine; provided, however, that, if the Debtor or the Reorganized Entity direct or directs Executive to pay such claim and xxx for a refund, the Debtor or the Reorganized Entity 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) 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 Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Debtor's or the Reorganized Entity's control of the contest shall be limited to issues with respect to which the 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 a Gross-Up Payment or an amount advanced by the Debtor or the Reorganized Entity pursuant to Section 6.4(c), Executive becomes entitled to receive any refund with respect to the Excess Parachute Payments; providedExcise Tax to which such Gross-Up Payment relates or with respect to such claim, that Executive shall (subject to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of Debtor's or the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply Reorganized Entity's complying with the requirements of Section 409A 6.4(c), if applicable) promptly pay to the Debtor or the Reorganized Entity 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 Debtor or the Reorganized Entity pursuant to Section 6.4(c), a determination is made that Executive shall not be entitled to any refund with respect to such payment so that claim and the payment Debtor or the Reorganized Entity do or does not give rise notify Executive in writing of its or their intent to contest such denial of refund prior to the interest or additional tax amounts described at Section 409A(a)(1)(Bexpiration of thirty (30) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); calendar days after such determination, then such advance shall be forgiven and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canshall not be made required to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments repaid and benefits include Excess Parachute Payments and, if so, the amount of such paymentsadvance shall be offset, to the extent thereof, against the amount of Gross-Up Payment required to be paid. (e) Notwithstanding any Excise Tax owed with respect theretoother provision of this Section 6.4, the Debtor or the Reorganized Entity may, in its or their sole discretion, withhold and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior pay over to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than or any other applicable taxing authority, for the Excise Tax (if any) determined by the accounting firmbenefit of Executive, the Company shall promptly augment the grossall or any portion of any Gross-up payment Up Payment, and Executive hereby consents to address such higher Excise Tax liabilitywithholding.

Gross-Up Payment. Payments In the event that any payments to which Xx. XxXxxxxxx becomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (or any similar tax that may hereafter be imposed), the “Company shall pay to Xx. XxXxxxxxx at the time specified below, an additional amount (the "Gross-Up Payment") such that the net amount retained by Xx. XxXxxxxxx (taking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (30th) day following payment of any amounts under the Employment Agreement that will be 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 on such day an estimate, as determined in good faith by the Company, 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, but in no event later than the forty-fifth (45th) day after payment of any amounts under the Employment Agreement that will be subject to the Excise Tax. 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 Xx. XxXxxxxxx, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). If For purposes of determining whether any portion of the payments Agreement Payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments, accruals, vestings or other compensatory benefits received or to be received by Xx. XxXxxxxxx in connection with a Change in Control of the Company or for the benefit termination of Executive Xx. XxXxxxxxx'x employment (including, but not limited to, payments and benefits under whether pursuant to the terms of this Agreement but determined without regard to this paragraphor 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 (which, together with the Agreement Payments, shall constitute the "Total Payments") constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, unless, in the opinion of tax counsel selected by the Company's independent auditors, such other payments or benefits (in whole or in part) represent reasonable compensation for services actually rendered within the aggregate 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 Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments and (b) the 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 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, Xx. XxXxxxxxx shall be deemed 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 and the 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 payments state and local taxes. 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, Xx. XxXxxxxxx shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the portion of the Gross-Up Payment being hereinafter referred repaid) if such repayment results in a reduction in Excise Tax and/or a federal, state, and local income tax deduction, plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to as exceed the “Excess Parachute Payments”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 promptly pay to Executive make an additional amount gross- up payment in respect of such excess (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) plus any interest payable with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments In the event that (i) the Employee becomes ----------------- entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of this agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b) (2) of the aggregate Code, and all "excess parachute payments" within the meaning of such payments being hereinafter referred to Section 280G(b) (1) shall be treated as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited subject to the Excise Tax) with respect to such gross-up payment equals , unless in the Excise Tax with respect opinion of tax counsel selected by the Company's independent auditors and acceptable to the Excess Parachute Payments; providedEmployee such payments or benefits (in whole or in part) do not constitute parachute payments, that to or such excess payments (in whole or in part) represent reasonable compensation for services actually rendered within the extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A 280G(b) (4) of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessaryii) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.the

Gross-Up Payment. Payments (a) In the event that the Executive becomes ---------------- entitled to any payments under Section C.1. and 5 or Section C.2. 8 of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement, or under any other payments agreement, plan or benefits to or arrangement for the benefit making of Executive) would be limited payments to the Executive upon a Change in Control or precluded by Section 280G upon the termination of employment caused by, subsequent to, or otherwise with respect to a Change in Control (together, the "Total Benefits"), and in the event that any of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Benefits and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 6, shall be equal to the Total Benefits. If no payment is due Executive upon a Change of Control under Section 5 of this Agreement, no payment shall be made under this Section 6. (b) 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 taxes (including but not limited "excess parachute payments" within the meaning of 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, 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 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, 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). (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 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax 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 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 make an additional Gross-Up Payment to the Executive in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such paymentsexcess is finally determined. (d) If Executive is entitled to any other payments or benefits in connection with a Change in Control or the termination of Executive's employment, the amount as referred to in clause (b) of any Excise Tax owed with respect theretothis Section 6, otherwise than those payable under this Agreement (collectively, "Other Arrangements"), and the amount if any of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior those Other Arrangements are subject to a Change limitation designed to prevent payments under them from being "parachute payments" or "excess parachute payments" within the meaning of Control the provisions of the Code referred to in clause (b) of this Section 6 through an express reference to such limitations in the “accounting firm”). Notwithstanding the foregoingCode, then, if the Internal Revenue Service any amount is payable to Executive under Section 5 of this Agreement, such limitations shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment no longer be deemed to address such higher Excise Tax liabilitybe effective for any purpose of those Other Arrangements or in making calculations under this Section 6.

Gross-Up Payment. Payments under Section C.1. and Section C.2. (A) Whether or not the Executive becomes entitled to the Severance Payments, if any payments or benefits received or to be received by the Executive whether pursuant to the terms of this Exhibit shall be made without regard to whether the deductibility of such payments (Agreement or any other payments plan, arrangement or benefits to agreement with the Company, or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (with any Person whose actions result in a Change in Control or any other Person affiliated with the Company or such Person (such payments or benefits) would subject Executive to , excluding the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (includingGross-Up Payment, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Total Payments”)) are subject to the Excise Tax, the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income and employment taxes and Excise Tax upon the Gross-Up Payment, shall be equal to the Total Payments. (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, (i) all of the Total Payments shall be treated as “parachute payments” (within the meaning of Code Section 280G(b)(2)) unless, in the opinion of the Company, such payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of Code Section 280G(b)(4)(A), (ii) all “excess parachute payments” within the meaning of Code Section 280G(b)(1) shall be treated as subject to the Excise Tax unless, in the opinion of the Company, such excess parachute payments (in whole or in part) represent reasonable compensation for all taxes services actually rendered (including but within the meaning of Code Section 280G(b)(4)(B)) in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not limited subject to the Excise Tax, and (iii) the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company in accordance with the principles of Code Section 280G(d)(3) and (4). The Company and the Executive agree that the determinations described in this Section 4.2(B) shall take the form of a letter from the Company accompanied by calculations prepared by a national accounting firm selected by the Company (the “Accounting Firm”). (C) The Gross-Up Payment (or portion thereof) will be paid to the Executive on the day of the payment of the Total Payments (or portion thereof) that give rise to the Excise Tax; provided, however, that if the amount of such Gross-Up Payment (or portion thereof) cannot be fully determined on or before the date on which payment is due, the Company will pay to the Executive by such date an amount estimated in good faith by the Accounting Firm to be the minimum amount of such Gross-Up Payment (or portion thereof) and will pay the remainder of such Gross-Up Payment (or portion thereof) (together with interest at the rate provided in Code Section 1274(b)(2)(B)) as soon as the amount thereof can be determined, but in no event later than 45 days after complete payment of the Total Payments. Further, in the event that on the day of payment of the Total Payments (or portion thereof) (or the 45-day period following such payments), no Gross-Up Payment (or portion thereof) is determined by the Accounting Firm to be due and it is subsequently determined that a Gross-Up Payment (or portion thereof) is owing to the Executive, such Gross-Up Payment (or portion thereof) will be made by the Company to the Executive at the date that such Gross-Up Payment amount (or portion thereof) is determined by the Accounting Firm to be payable to the Executive. (D) In the event that the Excise Tax is finally determined to be less than the amount taken into account hereunder in calculating the Gross-Up Payment, the Executive shall repay to the Company, within five business days following the later of the date that the amount of such reduction in the Excise Tax is fully determined and the date that such amount is fully refunded to the Executive by the Internal Revenue Service, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income and employment taxes imposed on the Gross-Up Payment) being repaid by the Executive, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of federal, state and local income and employment taxes. In the event that the Excise Tax is determined to exceed the amount originally remitted by the Executive which was taken into account hereunder in calculating the Gross-Up Payment and the Executive is obliged to remit additional Excise Taxes, the Executive shall provide the Company with written notice advising as to the amount of additional Excise Taxes which were so remitted and the date on which they were so remitted. As soon as practicable following receipt of such notice (but not later than the end of the taxable year following the year in which the additional Excise Taxes were remitted by the Executive), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess Excise Taxes). The Executive and the Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Excess Parachute Total Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.

Gross-Up Payment. Payments In the event that any payments to which Mr. Xxxxxxxxxx xxxomes entitled under Section C.1. and Section C.2. of this Exhibit shall Employment Agreement (the "Agreement Payments") will be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Code (the “Excise Tax”). If or any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”similar tax that may hereafter be imposed), the Company shall promptly pay to Executive Mr. Xxxxxxxxxx xx the time specified below, an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by Mr. Xxxxxxxxxx (xxking into account the Total Payments (as hereinafter defined) and the Gross-Up Payment), after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the Gross-Up Payment provided for all taxes by this Section 15, but before deduction for any federal, state or local income tax on the Total Payments, shall be equal to the "Total Payments," as defined below. Except as otherwise provided below, the Gross-Up Payment or portion thereof provided for in this Section 15 shall be paid not later than the thirtieth (including but not limited 30th) day following payment of any amounts under the Employment Agreement that will be subject to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, however, that to if the extent any grossamount of such Gross-up payment would Up Payment or portion thereof cannot be considered “deferred compensation” for purposes finally determined on or before such day, the Company shall pay on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments and shall pay the remainder of such payments (together with interest at the rate provided in Section 409A 1274(b)(2)(B) of the Code) as soon as the amount thereof can be determined, but in no event later than the manner and time forty-fifth (45th) day after payment of payment, and any amounts under the provisions of this Section C.3, shall Employment Agreement that will be adjusted subject to the extent necessary (but only to Excise Tax. In the extent necessary) to comply with the requirements of Section 409A with respect to such payment so event that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment estimated payments exceeds the amount subsequently determined to have been due, such excess shall constitute a loan by the Company to Mr. Xxxxxxxxxx, xxyable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). For purposes of determining whether any of the Agreement Payments will be determined without regard subject to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments Excise Tax and benefits include Excess Parachute Payments and, if so, the amount of such Excise Tax, (i) any other payments, the amount of any Excise Tax owed accruals, vestings or other compensatory benefits received or to be received by Mr. Xxxxxxxxxx xx connection with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change in Control of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment or the gross-up payment termination of Mr. Xxxxxxxxxx'x xxxloyment (whether pursuant to address such higher Excise Tax liability.the terms of this Agreement or any other plan, arrangement, or agreement with the

Gross-Up Payment. Payments under Section C.1. In the event that the Executive becomes entitled to the severance benefits described in Sections 5(a) and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (5(b) or any other benefits or payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (under this Amended Termination Agreement or any other payments agreement, plan, instrument or benefitsobligation in whatever form of the Company or its subsidiaries or affiliates (other than pursuant to this Section) would including by reason of the accelerated vesting of stock options or restricted stock hereunder or thereunder (together, the “Total Benefits”), and in the event that any of the Total Benefits will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under Code Section 4999 of the Code 4999, including interest, penalties or other excise tax thereon (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to the Executive an additional amount (the “grossGross-up paymentUp Payment”) such that the net amount retained by the Executive, after reduction 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 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 Amended Termination 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 taxes (including but not limited “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”) with respect to such gross-up payment equals selected by the Excise Tax with respect Company’s independent auditors and acceptable to the Excess Parachute Payments; providedExecutive, that to 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 extent any gross-up payment would be considered “deferred compensation” for purposes meaning of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4280G(b)(4) of the Code in excess of the Base Amount (as defined in the “Section 409A penalties”Code); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment canor are otherwise not be made to conform subject to the requirements of Section 409A of the CodeExcise Tax, (ii) the amount of the gross-up payment Total Benefits which shall be determined without regard treated as subject to any gross-up for the Section 409A penalties. The determination as Excise Tax shall be equal to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, 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 any Excise Tax owed with respect theretoexcess 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 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 any grossthe Gross-up payment Up Payment, the Executive shall be made deemed to pay federal income taxes at the Companyhighest 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 expense 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 PricewaterhouseCoopers LLP or 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 other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability state and local income taxes that is higher than the Excise Tax (if any) determined would otherwise be deductible by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityExecutive).

Gross-Up Payment. Payments under Section C.1. and Section C.2. (i) Notwithstanding any other provi-sions of this Exhibit shall Agreement, in the event that any payment or benefit received or to be made without regard received by the Executive in connection with a Change in Control or the termination of the Executive's employment (whether pursuant to whether the deductibility terms of such payments this Agreement (the "Severance Payments") or any other plan, arrangement or agreement with the Company, any Person whose actions result in a Change in Control or any Person affiliated with the Company or such Person) (all such payments or benefits to or for and benefits, including the benefit of ExecutiveSeverance Payments, being hereinafter called "Total Payments") would be limited subject (in whole or precluded by Section 280G of the Code (“Section 280G”part) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” ("Excise Tax") imposed under Section section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”"Code"), then the Company shall promptly pay to the Executive an additional amount (the “gross"Gross-up payment”Up Payment") such that the net amount retained by the Executive, after reduction deduction of any Excise Tax on the Total Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 8(e), shall be equal to the Total Payments. (ii) For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (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 selected by the Company's independent auditors and reasonably acceptable to the Executive ("Tax Counsel"), such other payments or benefits (in whole or in part) do not constitute parachute payments, including by reason of section 280G(b)(4)(A) of the Code, (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) represent reasonable compensation for services actually rendered, within the meaning of section 280G(b)(4)(B) of the Code, in excess of the Base Amount allocable to such reasonable compensation, or are otherwise not subject to the Excise Tax, and (C) the value of any noncash 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, 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 occurs the Date of Termination (including but not limited or such earlier date on which any payment or benefit becomes subject to the Excise Tax) and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination (or such earlier date on which any payment or benefit becomes subject to the Excise Tax), net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (iii) 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 reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in the Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that 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 make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties or additions payable by the Executive with respect to such gross-up payment equals excess) at the Excise Tax with respect to the Excess Parachute Payments; provided, time that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that excess is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityfinally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit Such notification shall be made without regard to whether given as soon as practicable but no later then twenty (20) business days after the deductibility Executive is informed in writing of such payments claim and shall apprise the Company of the nature of such claim and the date on which such claim is 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 other payments or benefits payment of taxes with respect to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such Excise Tax claim, the Executive shall: (i) give the Company any portion 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 after consultation in good faith with Executive and subject to approval by Executive (which approval shall not be unreasonably withheld) under the circumstances set forth in Section 7.1; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceeding 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, from 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 expense. Without limitation of the payments or benefits foregoing provisions of this Article 7, if the Gross-Up Payment payable hereunder (determined on the basis of the amount being contested), together with any previous Gross-Up Payment made by the Company to or for the benefit of Executive hereunder (includingcollectively the "Aggregate Gross-Up Payment"), but would not limited to, payments and benefits under this Agreement but exceed Two Hundred Fifty Thousand Dollars ($250,000.00) (determined without regard to this paragraphthe Two Hundred Fifty Thousand Dollars ($250,000.00) constitutes an “excess parachute payment” within the meaning of limit in Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”7.1(a)), the Company shall promptly control the Excise Tax portion of any 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 Excise Tax claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue xxx a refund or contest the Excise Tax 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. If the Company directs the Executive to pay such Excise Tax claim and sue xxx a refund, the Company shall advance the amount of such payment to the Executive, on an additional amount (interest-free basis, and shall indemnify and hold the “grossExecutive harmless, on an after-up payment”) that after reduction for all taxes tax basis, from any Excise Tax or income tax (including but not limited to the Excise Taxinterest and penalties) imposed with respect to such gross-up payment equals the Excise Tax advance or with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A imputed income with respect to such advance; and provided, however, that any Company-directed extension of the statute of limitations relating to payment so that of taxes for the payment does not give rise Executive's taxable year with respect to which such contested Excise Tax amount is claimed to be due shall be effective only if it can be and is limited to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of contested Excise Tax liability. Notwithstanding anything to the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding provisocontrary herein, the grossExecutive shall control the settlement or contest, as the case may be, of all non-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments Excise Tax issues and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed issues with respect thereto, and to which the amount of any grossAggregate Gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.Up Payment payable hereunder

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit shall be made without regard to whether the deductibility of such payments (or any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company Purchaser shall promptly pay to Executive Sellers (in accordance with their respective Pro-Rata Shares), by wire transfer of immediately available funds, as an additional amount increase to the Purchase Price, the sum of (a) the aggregate increase in Taxes, incurred by Sellers, resulting from an election made under Section 338(h)(10) of the Code and any similar provision of state or local law (each, a “338(h)(10) Election”) such that the Sellers will receive the same after-Tax proceeds as if Sellers had sold stock and no 338(h)(10) Election had occurred, plus (b) a “gross-up payment”) that after reduction for all taxes (including but not limited ” equal to the Excise TaxTaxes that Sellers must pay on the Taxes described in clause (a) with respect to such and any “gross-up payment equals payment” pursuant to this clause (b) (the Excise Tax with respect sum of such amounts in clauses (a) and (b) being referred to collectively as the Excess Parachute Payments; provided, that to “Gross-Up Payment”). The Parties agree the extent any gross-up payment would be considered “deferred compensation” following principles shall apply for purposes of Section 409A calculating the Gross-Up Payment: (i) the calculation of the Code, the manner and time of payment, and the provisions of this Section C.3, Gross-Up Payment shall be adjusted to the extent necessary (but only to the extent necessary) to comply made in accordance with the requirements of Section 409A with respect to such payment so that Tax Allocation; and (ii) the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code methodology set forth on Schedule 2.7 (the “Gross-Up Methodology”) shall be used to calculate the Gross-Up Payment. The obligation to compensate Sellers for increased Taxes as set forth in this Section 409A penalties”2.7 will be ongoing in the event of any actual adjustment upon amended return, audit or otherwise, and any additional increase shall be paid promptly by Purchaser by wire transfer of immediately available funds to an account designated in writing by the Seller Representative for the benefit of the Sellers (in accordance with their respective Pro-Rata Shares); , as the designees of Sellers and further provided, that if, notwithstanding any decrease shall be paid promptly by the Sellers by wire transfer of immediately preceding proviso, the gross-up payment cannot be made to conform available funds to the requirements of Section 409A of the Code, account specified in writing by Purchaser. Any dispute regarding the amount of the grossGross-up payment Up Payment shall be determined without regard resolved in accordance with the dispute resolution provisions described in Section 2.5(c), substituting for these purposes any reference in Section 2.5(c) to any gross“Final Net Working Capital” or similar and “Purchaser Closing Statement” with “Final Gross-up for Up Payment” and “calculation of the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments andFinal Gross-Up Payment”, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liabilityrespectively.

Gross-Up Payment. Payments under Section C.1. (a) Anything in this Agreement to the contrary notwithstanding and Section C.2. of this Exhibit except as set forth below, in the event it shall be made without regard to whether the deductibility of such payments (or determined that any other payments or benefits to or for the benefit of Executive) Payment would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 of the Code (the “Excise Tax”). If any portion of the payments or benefits to or for the benefit of Executive (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G (the aggregate of such payments being hereinafter referred to as the “Excess Parachute Payments”), the Company shall promptly pay to Executive an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax, then Executive shall be entitled to receive an additional payment (the "Gross-Up -------- Payment") in an amount such that, after payment by Executive of all ------- Taxes (and any interest or penalties imposed with respect to such grossTaxes), including any income taxes (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-up payment equals Up Payment, Executive retains an amount of the Gross-Up Payment equal to the Excise Tax with respect to imposed upon the Excess Parachute Payments; provided, that to . Notwithstanding the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the foregoing provisions of this Section C.36.4(a), if it shall be determined that Executive is entitled to the Gross-Up Payment, but that the Parachute Value of all Payments does not exceed one hundred and ten percent (110%) of the Safe Harbor Amount, then except as provided below, no Gross-Up Payment shall be made to Executive and the amounts payable under this Agreement, other than amounts or benefits provided under Article V of this Agreement or pursuant to any other option or equity grants to Executive (the "Subject Payments"), shall be adjusted to the extent necessary reduced (but only to the extent necessarynot below ---------------- zero) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise Parachute Value of all Payments, in the aggregate, equals the Safe Harbor Amount. The reduction of the amounts payable hereunder, if applicable, shall be made by first reducing the payments under Section 7.3(a)(ii), unless an alternative method of reduction is elected by Executive, and in any event shall be made in such a manner as to maximize the Value of all Payments actually made to Executive. For purposes of reducing the Payments to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) Safe Harbor Amount, only the Subject Payments shall be reduced. If the reduction of the Code (Subject Payments would not result in a reduction of the “Parachute Value of all Payments to the Safe Harbor Amount, no amounts payable under the Agreement shall be reduced pursuant to this Section 409A penalties”6.4(a); , and further provided, that if, notwithstanding the immediately preceding proviso, the grossGross-up payment cannot Up Payment shall be made to conform Executive. The Company's obligation to make Gross-Up Payments under this Section 6.4 shall not be conditioned upon Executive's Termination of Employment. (b) Subject to the requirements provisions of Section 409A of the Code6.4(c), the amount of the grossall determinations required to be made under this Section 6.4, including whether and when a Gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if soUp Payment is required, the amount of such payments, the amount of any Excise Tax owed with respect thereto, Gross-Up Payment and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior assumptions to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address such higher Excise Tax liability.be

Gross-Up Payment. Payments In the event that (i) the Employee becomes entitled to the payments provided under Section C.1. and Section C.2. 10.2 of this Exhibit shall be made without regard to whether Agreement (the deductibility of such payments (or "Change in Control Payments") and any other payments or benefits to or for the benefit of Executive) would be limited or precluded by Section 280G of the Code (“Section 280G”) and without regard to whether such payments (or any other payments or benefits) would Change in Control Payments will be subject Executive to the federal excise tax levied on certain “excess parachute payments” under (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Excise Tax”"Code"). If , or any portion of the successor provision, or (ii) any payments or benefits received or to be received by the Employee pursuant to the terms of any other plan, arrangement or agreement (the "Benefit Payments") will be subject to the Excise Tax, the Company shall pay to the Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by the Employee, after deduction of any Excise Tax on the Change in Control Payments and the Benefit Payments, and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section 10.3, shall be equal to the benefit Change in Control Payments and the Benefit Payments, provided, however, that in determining the amount of Executive the Gross-Up Payment, any Excise Tax on the Change in Control Payments and the Benefit Payments shall be determined using a rate no higher than 20%. For purposes of determining whether any of the Change in Control Payments or the Benefit Payments will be subject to the Excise Tax and the amount of such Excise Tax, (includingi) any payments or benefits received or to be received by the Employee in connection with a change in control of the Company or the Employee's termination of employment (whether pursuant to the terms of this agreement or any other plan, but not limited toarrangement or agreement with the Company, payments and benefits under this Agreement but determined without regard to this paragraphany person whose actions result in change in control or any person affiliated with the Company or such persons) constitutes an “excess shall be treated as "parachute payment” payments" within the meaning of Section 280G 280G(b) (2) of the aggregate Code, and all "excess parachute payments" within the meaning of Section 280G(b) (1) 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 the Employee 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 in Control Payments 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 in Control Payments and the Benefit 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 deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates or taxation in the state and locality of the Employee's residence on the date of termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such payments being hereinafter referred state and local taxes. In the event that the Excise Tax is subsequently determined to as be less than the “Excess Parachute Payments”amount taken into account hereunder at the time of termination of the Employee's employment, the Employee shall repay to the Company at that time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Employee's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall promptly pay to Executive make an additional amount (the “gross-up payment”) that after reduction for all taxes (including but not limited to the Excise Tax) with respect to such gross-up payment equals the Excise Tax with respect to the Excess Parachute Payments; provided, that to the extent any gross-up payment would be considered “deferred compensation” for purposes of Section 409A of the Code, the manner and time of payment, and the provisions of this Section C.3, shall be adjusted to the extent necessary (but only to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (if any) determined by the accounting firm, the Company shall promptly augment the gross-up payment to address the Employee in respect of such higher Excise Tax liabilityexcess (plus any interest payable with respect to such excess) at the time that the amount of such excess is finally determined.

Gross-Up Payment. Payments under Section C.1. and Section C.2. of this Exhibit In the event it shall be made without regard to whether the deductibility determined that any paxxxxx xx distribution of such payments (or any other payments or benefits type to or for the benefit of Executive) would be limited the Employee, by Westport, any Affiliate, any person who acquires ownership or precluded by Section 280G effective control of the Code (“Section 280G”) and without regard to whether such payments (Westport or any other payments or benefits) would subject Executive to the federal excise tax levied on certain “excess parachute payments” under Section 4999 ownership of the Code (the “Excise Tax”). If any a substantial portion of the payments or benefits to or for the benefit of Executive Westport's assets (including, but not limited to, payments and benefits under this Agreement but determined without regard to this paragraph) constitutes an “excess parachute payment” within the meaning of Section 280G of the Code and the regulations thereunder) or any affiliate of such Person, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the aggregate "Total Payments"), 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 payments being hereinafter excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excess Parachute Payments”"Excise Tax"), then the Company Employee shall promptly pay be entitled to Executive receive an additional payment (a "Gross-Up Payment") in an amount (the “gross-up payment”) such that after reduction for payment by the Employee of all taxes (including but not limited to the Excise Tax) any interest or penalties imposed with respect to such grosstaxes), including any income tax, employment tax or Excise Tax, imposed upon the Gross-up payment equals Up Payment, the Employee retains an amount of the Gross-Up Payment equal to the Excise Tax with respect imposed upon the Total Payments. Notwithstanding the foregoing provisions of this Section 6(a), if it shall be determined that the Employee is entitled to a Gross-Up Payment, but that the Total Payments would not be subject to the Excess Parachute Payments; provided, Excise Tax if the Total Payments were reduced by an amount that to is less than 10% of the extent any gross-up payment portion of the Total Payments that would be considered “deferred compensation” for purposes of treated as "parachute payments" under Section 409A 280G of the Code, then the manner and time of payment, and amounts payable to the provisions of Employee under this Section C.3, Agreement shall be adjusted reduced to the extent necessary (but only maximum amount that could be paid to the extent necessary) to comply with the requirements of Section 409A with respect to such payment so that the payment does not give Employee without giving rise to the interest or additional tax amounts described at Section 409A(a)(1)(B) or Section 409A(b)(4) of the Code (the “Section 409A penalties”); and further provided, that if, notwithstanding the immediately preceding proviso, the gross-up payment cannot be made to conform to the requirements of Section 409A of the Code, the amount of the gross-up payment shall be determined without regard to any gross-up for the Section 409A penalties. The determination as to whether Executive’s payments and benefits include Excess Parachute Payments and, if so, the amount of such payments, the amount of any Excise Tax owed with respect thereto, and the amount of any gross-up payment shall be made at the Company’s expense by PricewaterhouseCoopers LLP or by such other certified public accounting firm as the Committee may designate prior to a Change of Control (the “accounting firm”). Notwithstanding the foregoing, if the Internal Revenue Service shall assert an Excise Tax liability that is higher than the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to the Employee. The reduction of the amounts payable hereunder, if any) determined applicable, shall be made by reducing first the payment under Section 4(a), unless an alternative method of reduction is elected by the accounting firmEmployee. For purposes of reducing the Total Payments to the Safe Harbor Cap, the Company only amounts payable under this Agreement (and no other amounts) shall promptly augment the gross-up payment to address such higher Excise Tax liabilitybe reduced.