Common use of Gross-Up Payment Clause in Contracts

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, 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 interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,

Gross-Up Payment. (i) In the event that any payments under this Agreement payment or any other compensation, benefit or other amount from distribution by the Company to or for the benefit of the Executive are (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 6(e)) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended or any interest or penalties are incurred by the Executive with respect to such excise tax (the "Code") (including any applicable interest and penaltiescollectively, the "“Excise Tax"”), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether of all taxes (including any of the Parachute Payments are subject income taxes and interest or penalties imposed with respect to such taxes) and the Excise Tax and imposed on the amount of any Excise Tax and shall notify Gross-Up Payment, the Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retains an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 6(e), Executive shall be deemed to pay taxes at including whether and when a Gross-Up Payment is required and the Tax Rate applicable at the time amount of the such Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Executive’s termination of employment (the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 6(e), will be paid by the Company to the Executive within ten days of the receipt of the Accounting Firm’s determination, but in no event shall it be paid later than the end of the year next following the year in which the Executive initially paid the Excise Tax. (i) If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event that the Excise Tax there is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion an under-payment of the Gross-Up Payment attributable due to such reduction plus interest on the amount uncertainty in the application of such repayment as the rate provided in Section 1274(d)(1) 4999 of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute 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)initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that Accounting Firm will determine the amount of any such excess is finally determined. The under-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit of the Executive, but in no event shall reimburse it be paid later than the end of the year next following the year in which the Executive for all reasonable fees, expenses, and costs related to determining initially paid the reasonableness of any Company position in connection with this paragraph,Excise Tax.

Gross-Up Payment. (i) In If, after the Effective Date, any event that any payments under this Agreement occurs or any other compensation, benefit or other amount from circumstance exists which results in the Company for the benefit of Executive are Employee being subject to the any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor thereto or any similar tax imposed by any other federal, state, local or other law, the Company shall cause an independent, nationally recognized accounting firm or executive compensation consulting firm selected by the Company (the "Firm") promptly to review, at the Company's sole expense, the applicability of any such excise or similar tax to the Employee. If the Firm determines that the Employee is or will be subject to any such excise or similar tax or any interest thereon or penalty with respect thereto imposed by the Code or any other federal, state, local or other law (including any applicable such excise or similar tax, interest thereon, and penalties, penalty with respect thereto are referred to as the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay make to Executive by the earlier of Employee, within ten (10) days after the date Company receives such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executivedetermination, an additional amount cash payment (the "Gross-Up Payment") equal to an amount such that after timely payment by the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion Employee of the Gross-Up Payment attributable to such reduction plus the appropriate taxing authority(ies), the Employee's liability for all taxes (including all interest thereon and penalties with respect thereto) would be the same as if no Excise Tax applied. For purposes of the foregoing determination, the Employee's tax rate will be deemed to be the highest statutory marginal federal and state tax rates applicable to the Employee (on a combined basis) then in effect. If any taxing authority finally determines that a greater Excise Tax should be imposed upon the amount Employee than is determined by the Firm or is reflected in the Employee's tax return pursuant to this paragraph 13, the Company shall pay to the Employee, within ten (10) days after the Employee notifies the Company of such repayment as final determination, the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time remaining balance of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that Payment calculated based on the amount of such Excise Tax finally determined to be payable by the taxing authority. If any taxing authority determines that a lesser Excise Tax should be imposed upon the Employee than is determined by the Firm or is reflected in the Employee's tax return pursuant to this paragraph 13, the Employee shall return to the Company, within ten (10) days after receipt by the Employee of a refund from the taxing authority, the excess is finally determined. The of the Gross-Up Payment made by the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Employee over the Gross-Up Payment required to satisfy the Excise Tax as determined by the taxing authority.

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are subject to the tax imposed by Section 4999 of If the Internal Revenue Code Service asserts that any portion of 1986any payment made to Employee pursuant to any provision of this Agreement constitutes an Excess Parachute Payment and imposes an Excise Tax thereon, as amended (then the "Code") (including any applicable interest Company agrees that it will indemnify and penalties, the "hold harmless Employee in an amount equal to such Excise Tax"), no such payment ("Parachute Payment") . Such amount shall be reduced (except paid to Employee immediately pending a final judicial determination of, or settlement determining, such liability for required tax withholdings) and the Excise Tax otherwise. In addition, the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal Payment to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine Employee or his estate in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive incurred by Employee as a result of its determination. The Company and Executive shall file all any severance compensation, accelerated exercisability of options, accelerated vesting of restricted shares and/or continuation of benefits under this Section 6, plus an amount equal to any federal, state or local income tax returns and reports regarding such Parachute Payments in a manner consistent with imposed on Employee as the result of the Company's reasonable good faith determination’s payment of any such Excise Tax amount. Such Gross-Up Payment shall be payable to Employee at the time the respective applicable tax triggering such Gross-Up Payment is due. For purposes of determining the amount of the Gross-Up Payment, Executive shall Employee will be deemed to (i) pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1is made, and (ii) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder state and local income taxes at the time a Parachute Payment is made (including by reason highest marginal rates of any payment taxation in the existence or amount state and locality of his residence in the calendar year in which cannot be determined at the time of the Gross-Up PaymentPayment is made net, in the case of clause (i), of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The parties agree that the payments required to be made under this Section 6 are such that the payments Employee receives, or is entitled to receive, under this Section 6 shall not be reduced by any Excise Tax or Gross-Up Payment with respect thereto and therefore the net amount retained by Employee, after reimbursement for any Excise Tax, or any other federal, state or local income or other tax that may be payable on receipt of such reimbursement for Excise Tax, that is imposed as a result of any payment required to be made under this Section 6 shall be equal to the same amount as if no such Excise Tax or other tax had been imposed. All other rights and obligations of the Company and Employee under this Agreement (other than Sections 8, 9 and 10, which shall make an additional gross-up payment in respect survive termination) shall cease as of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Termination Date.

Gross-Up Payment. (i) In the event that any payments under this Agreement payment or any other compensation, benefit or other amount from distribution by the Company to or for the benefit of the Executive are (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 6(e)) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended or any interest or penalties are incurred by the Executive with respect to such excise tax (the "Code") (including any applicable interest and penaltiescollectively, the "“Excise Tax"”), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether of all taxes (including any of the Parachute Payments are subject income taxes and interest or penalties imposed with respect to such taxes) and the Excise Tax and imposed on the amount of any Excise Tax and shall notify Gross-Up Payment, the Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retains an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 6(e), Executive shall be deemed to pay taxes at including whether and when a Gross-Up Payment is required and the Tax Rate applicable at the time amount of the such Gross-Up Payment, will be made by the independent accounting firm of the Company immediately prior to the Executive’s termination of employment (the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Company, and any determination by the Accounting Firm will be binding upon the Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 6(e), will be paid by the Company to the Executive within ten days of the receipt of the Accounting Firm’s determination, but in no event later than the end of the year next following the year in which the Executive pays the Excise Tax. (i) If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event that the Excise Tax there is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion an under-payment of the Gross-Up Payment attributable due to such reduction plus interest on the amount uncertainty in the application of such repayment as the rate provided in Section 1274(d)(1) 4999 of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute 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)initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that Accounting Firm will determine the amount of any such excess is finally determined. The under-payment that has occurred and such amount will be promptly paid by the Company to or for the benefit of the Executive, but in no event shall reimburse it be paid later than the end of the year next following the year in which the Executive for all reasonable fees, expenses, and costs related to determining initially paid the reasonableness of any Company position in connection with this paragraph,Excise Tax.

Gross-Up Payment. (i) In the event that the aggregate of any payments or benefits made or provided to the Executive under this Agreement (other than any payment pursuant to this Section 9) and under any other plans, programs or arrangements of the Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Code, or any other compensationsuccessor provision, benefit or other amount from the Company for the benefit of Executive are then, subject to the last sentence of this Section 9, the Company shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended or any successor provision (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination of whether an Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment shall be made by an independent Tax Auditor (the "Parachute PaymentTax Auditor") jointly selected by the Company and the Executive and paid by the Company. The Tax Auditor shall be reduced a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on a firm to serve as the Tax Auditor, then the Executive and the Company shall each select one nationally recognized United States accounting firm and those two firms shall jointly select the accounting firm to serve as the Tax Auditor. Notwithstanding the foregoing (except for required tax withholdings) and but subject to the last sentence of this Section 9), in the event that the amount of the Executive's Excise Tax liability is subsequently determined to be greater than the Excise Tax liability with respect to which an initial payment to the Executive under this Section 9 has been made, the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") with respect to such that the net amount retained by Executive, after deduction of any additional Excise Tax on the Parachute Payments, taxes based upon the Tax Rate (and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, 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 interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or and penalties payable in respect of such excessthereon) at the time that the amount of such excess the actual Excise Tax liability is finally determined, such additional amount to be calculated in the same manner as such initial payment. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses relating to any such proceeding or claim (including all reasonable attorney's fees and other expenses incurred by the Executive in connection therewith) shall be paid by the Company promptly upon written demand by the Executive. Notwithstanding any of the foregoing provisions of this paragraph,Section 9, the aggregate amounts payable to the Executive pursuant to this Section 9 with respect to the Excise Tax liability (exclusive of the aforesaid expenses incurred by the Executive in connection therewith) shall not exceed one million dollars ($1,000,000).

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount the Executive receives a notice from the Company for Internal Revenue Service to the benefit of Executive are effect that the amounts payable under the Consulting and Non-Competition Agreement would be subject (in whole or part) to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax")) imposed under section 4999 of the Code, no within thirty (30) days after the date the Chairman of the Board receives a copy of such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and notice the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“ Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with this paragraph,the principles of Code sections 280G(d)(3) and (4).

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments in a manner consistent with costs will be borne by the Company's reasonable good faith determination. Executive. (c) For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided Excise Tax that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 1274(d)(1) 3.03, the Company will not have any obligation to make the Gross-Up Payment unless the value of the Code or other applicable provision Total Payments exceeds 110% of the Code but only maximum amount of parachute payments that could be paid to the extent that such interest is paid to ExecutiveExecutive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In the event that the Excise Tax is determined to value of the Total Payments does not exceed the amount taken into account hereunder at 110% Amount, the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time value of the Gross-Up PaymentTotal Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with the principles of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, any payment under this paragraph,Section 3.03 shall be made by March 15 of the year following the Executive’s Date of Termination.

Gross-Up Payment. (i) In If any payment or benefit received by the event that any payments Executive under this Agreement or any other compensation, benefit plan or other amount from agreement with the Company for the benefit of Executive are (a “Benefit”) is subject to the tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended amended, or any interest or penalties are incurred by the Executive with respect to such tax (the "Code") (including any applicable interest and penaltiescollectively, “Excise Tax”), the "Company will pay the Executive an amount (“Gross Up Payment”) that covers: all Excise Taxes payable by Executive because of any such Benefit and all income and employment taxes and Excise Taxes on the Gross Up Payment. It is the Company’s intent that any payment under this Section 3.11 shall place the Executive in the same position that he would have been in had the Benefit not been subject to the Excise Tax"), no such payment ("Parachute Payment") . Any Gross Up Payment shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of made no later than the date such the Excise Tax is withheld form payments made to payable by the Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment it is withheld as provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposedbelow. The Company shall determine in good faith whether or not any of the Parachute Payments are Benefit is subject to the Excise Tax and withhold the amount of the Excise Tax from any Benefit or other remuneration payable to the Executive. Any such determination shall be made in good faith and after consultation with the Company’s independent certified public accountants or outside tax counsel. The Company shall also have the right, on behalf of the Executive, at its sole cost and expense, to contest any claim by the Internal Revenue Service (“Service”) that any Benefit is subject to the Excise Tax or file and pursue a claim for refund of any Excise Tax and shall notify Executive of its determinationpreviously paid. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent cooperate with the Company's reasonable good faith determinationCompany in any such proceeding and provide the Company with any notifications received by the Executive from the Service. For purposes If the Executive receives any refund of determining Excise Tax for which a Gross Up Payment has been made, the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay such refund to the Company at the time Company. Provided, however, 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 as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but shall be made only to the extent that such interest the total value of Benefits exceeds by 10 percent or more the dollar amount that is paid to 3 times the Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made ’s “base amount” (including by reason of any payment the existence or amount of which cannot be determined at the time as defined in Section 280G of the Code). If the total value of Benefits exceeds by less than 10 percent the dollar amount that is 3 times the Executive’s “base amount,” then no Gross-Up Payment), the Company Payment shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) be made and Benefits shall be capped at the time amount that is $1 less than 3 times the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Executive’s “base amount.”

Gross-Up Payment. (ia) In Notwithstanding anything in this Agreement to the contrary, in the event it is determined that any payments payment or distribution by the Company to or for the benefit of the Executive, under this Agreement or any other compensationotherwise (a “Payment”), benefit or other amount from the Company for the benefit of Executive are would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that after payment by the net Executive of all taxes (including any interest or penalties imposed with respect to such taxes and including any Excise Tax, imposed upon the Gross-Up Payment) the Executive retains an amount retained of the Gross-Up Payment equal to the Excise Tax imposed upon the Payments. (b) Subject to the provisions of Section 5(c) hereof, all determinations required to be made under this Section 5, including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by any nationally recognized firm of certified public accountants (the “Accounting Firm”) which shall provide detailed supporting calculations to the Company and the Executive within 60 business days following the occurrence of a Change in Control. If the Accounting Firm has performed services for the entity that caused the Change of Control or any of its Affiliates, the Executive may select an alternative accounting firm from any nationally recognized firm of certified public accountants. If the Accounting Firm determines that no Excise Tax is payable by the Executive, after deduction of it shall furnish the Executive with an opinion that he has substantial authority not to report any Excise Tax on his federal income tax return. Any determination by the Parachute Payments, taxes based Accounting Firm shall be binding upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determinationExecutive. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining When calculating the amount of the Gross-Up Payment, the Executive shall be deemed to pay pay: (i) Federal income taxes at the Tax Rate highest applicable marginal rate of Federal income taxation for the calendar year in which the Gross-Up Payment is to be made; and (ii) any applicable state and local income taxes at the time highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes if paid in such year. (c) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-Up Payment. Such notification shall be given as soon as practicable but no later than ten business days after the Executive knows of such claim. The notification shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim for at least thirty days after the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (i) give the Company any information reasonably requested by the Company relating to such claim; (ii) take such action in connection with contesting such claim as the Company reasonably requests in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (iii) cooperate with the Company in good faith in order to effectively contest such claim; and (iv) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest. The Company shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this Section 5(c), the Company shall control all proceedings taken in connection with such contest. The Company, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim. The Company may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall pay the amount of such payment to the Executive and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties, imposed with respect to such payment and with respect to any imputed income with respect to such payment; and provided, further that any extension of the statue of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. The Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (d) As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which should have been made will not have been made (“Underpayment”). In the event that the Company exhausts it remedies pursuant to Section 5(c), and the Executive is required to make a payment of any Excise Tax is subsequently determined to be less than Tax, the Accounting Firm shall determine the amount taken into account hereunder at of the time a Parachute Payment is made, Executive shall repay to Underpayment and the Company at shall promptly pay the time that Executive the amount of such reduction in Excise Tax is finally determined Underpayment. (e) If, after the portion Company has paid a claim pursuant to Section 5(c) the Executive becomes entitled to a refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 5(c)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon by the taxing authority after deducting any taxes applicable thereto). The amount of such payment shall be considered part of the Gross-Up Payment attributable and subject to such reduction plus gross-up for any taxes (including interest on or penalties) associated therewith. (f) The Gross-Up Payment shall be paid to the amount of such repayment as Executive no later than the rate provided in Section 1274(d)(1) Executive’s taxable year following the taxable year of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that Executive in which the Excise Tax is determined Taxes with respect to exceed the amount taken into account hereunder at the time a Parachute 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), Payment is payable are paid by the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Executive.

Gross-Up Payment. (ia) In the event that any payments amount or benefits made or provided to Executive above and under this Agreement or any all other compensation, benefit or other amount from plans and programs of the Company for (the benefit of Executive are subject "Covered Payments") is determined to the tax imposed by constitute a Parachute Payment, as such term is defined in Section 4999 280G(b)(2) of the Internal Revenue Code of 1986Code, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by Executive, prior to the earlier of the date time any Internal Revenue Code Section 4999 excise tax ("Excise Tax") is payable with respect to any such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by ExecutiveCovered Payment, an additional amount which is equal to the Excise Tax on the Covered Payment (the "Initial Gross-Up"), plus the amount of income tax and Excise Tax payable by Executive with respect to the Initial Gross-Up Payment(the "Second Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Second Gross-Up (the "Third Gross-Up"), the amount of income tax and Excise Tax payable by Executive with respect to the Third Gross-Up (the "Fourth Gross-Up"), and the amount of income tax and Excise Tax payable by Executive with respect to the Fourth Gross-Up. (b) The determination of whether the Covered Payment constitutes a Parachute Payment and, if so, the amount to be paid to Executive and the time of payment pursuant to this paragraph 20 shall be made by an independent auditor (the "Auditor") jointly selected by the Company and Executive and paid by the Company. The Auditor shall be a nationally recognized United States public accounting firm which has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any of its Affiliates. If Executive and the Company cannot agree on the firm to serve as the Auditor, then Executive and the Company shall each select one accounting firm and those two firms shall jointly select the accounting firm to serve as the Auditor. (c) In the event that upon any audit by the Internal Revenue Service, or by a state or local taxing authority, of the Covered Payment or the Gross-Up payments, a change is finally determined to be required in the amount of taxes paid by the Executive, appropriate adjustments will be made under this Agreement such that the net amount retained by Executive, which is payable to Executive after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken taking into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount provisions 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 as the rate provided in Section 1274(d)(1) section 4999 of the Code or other applicable provision will reflect the intent of the Code but only to parties as expressed in subparagraph (a) above, in the extent that such interest is paid to Executive. In manner determined by the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Auditor.

Gross-Up Payment. (i) In If the event that any aggregate of all payments or benefits made or provided to the Employee under this Agreement or any and under all other compensation, benefit or other amount from plans and programs of the Company for (the benefit of Executive are subject "Aggregate Payment") is determined to the tax imposed by constitute a "parachute payment," as such term is defined in Section 4999 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "Code") ), the Company shall pay to the Employee, prior to or coincident with the time any excise tax imposed by Section 4999 of the Code (including any applicable interest and penalties, the "Excise Tax")) is payable with respect to such Aggregate Payment, no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) an additional amount that, after the imposition of all penalties, income, excise and other federal, state and local taxes thereon, is equal to the Company shall pay to Executive by the earlier sum of the date such Excise Tax is withheld form payments made on the Aggregate Payment and interest and penalties imposed with respect to Executive or the date such Excise Tax becomes due and payable by Executive, an such additional amount (the "Gross-Up Payment") such that the net amount retained by Executive). For example, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax imposed with respect to the Aggregate Payment equals $1,000,000 and all penalties, income, excise and other federal, state and local taxes on the Gross-Up Payment equal $2,333,333, the Gross-Up Payment will be $3,333,333. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be paid to the Employee and the amount time of any Excise Tax payment pursuant to this Section 6 shall be made by an independent auditor (the "Auditor") selected and shall notify Executive of its determinationpaid by the Company and reasonably acceptable to the Employee. The Company and Executive Auditor shall file all tax returns and reports regarding such Parachute Payments in be a manner consistent with the Company's reasonable good faith determinationnationally recognized United States public accounting firm. For purposes of determining the amount of the Gross-Up Payment, Executive the Employee shall be deemed to pay taxes income tax at the Tax Rate applicable at highest marginal rates of federal, state and local income taxation in the time of calendar year in which the Gross-Up PaymentPayment 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. In the event that the Excise Tax is subsequently finally determined to be less than the amount taken into account hereunder at in calculating the time a Parachute Payment is madeGross-Up Payment, Executive the Employee shall repay to the Company at Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined 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 Employee, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Employee's taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment as at 120% of the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at in calculating the time a Parachute 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 payment of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Employee with respect of to such excess) at within five (5) business days following the time that the amount of such excess is finally determined. The Employee and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position cooperate with each other in connection with this paragraph,any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Employee in connection therewith shall be paid by the Company promptly upon notice of demand from the Employee.

Gross-Up Payment. (iIf the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) In or the event that any payments under this Agreement or any other compensationvesting of the Options accelerate following a Change in Control as provided in the Stock Option Agreements, benefit or other amount from the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the benefit of Executive are subject Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, the Stock Option Agreements or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986or any comparable state or local law, as amended or any interest or penalties with respect to such excise tax (the "Code") (including such excise tax, together with any applicable such interest and penalties, are collectively referred to as the "“Excise Tax"”), no such the Company will make an additional cash payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) to the Executive within 10 days after such determination equal to an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Parachute PaymentsTax, taxes based imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retain an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, Executive shall the Executive’s tax rate will be deemed to pay taxes at be the Tax Rate applicable at highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time of the Gross-Up Payment. In Executive is required to file a tax return reflecting the event that Total Payments, the Excise Tax is subsequently determined Executive will be entitled to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to receive from the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to such reduction plus interest the Company. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), the Executive will be entitled to receive from the Company the full Gross-Up Payment calculated on the basis of the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed be payable by such tax authority within 10 days after the amount taken into account hereunder at the time a Parachute 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), Executive notifies the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,determination.

Gross-Up Payment. (i) In the event that any payments under this Agreement payment or any other compensation, benefit distribution by the Employer to or other amount from the Company for the benefit of the Executive are (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under this Section 36(d)) (a “Payment”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended 1986 (the "“Code"”) or any interest or penalties are incurred by the Executive with respect to such excise tax (including any applicable interest and penaltiescollectively, the "“Excise Tax"”), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether of all taxes (including any of the Parachute Payments are subject income and employment taxes and interest or penalties imposed with respect to such taxes) and the Excise Tax and imposed on the amount of any Excise Tax and shall notify Gross-Up Payment, the Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retains an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed on the Payments. All determinations required to be made under this Section 3(d), Executive shall be deemed to pay taxes at including whether and when a Gross-Up Payment is required and the Tax Rate applicable at the time amount of the such Gross-Up Payment, will be made by the independent accounting firm of the Holding Company immediately prior to the Executive’s termination of employment (the “Accounting Firm”). All fees and expenses of the Accounting Firm will be borne solely by the Holding Company, and any determination by the Accounting Firm will be binding upon the Holding Company and the Executive. Any Gross-Up Payment, as determined pursuant to this Section 3(d), will be paid by the Employer or Holding Company to the Executive within ten days of the receipt of the Accounting Firm’s determination, but in no event later than the end of the year next following the year in which the Executive pays the Excise Tax. (i) If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall so indicate to the Executive in writing. (ii) In the event that the Excise Tax there is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion an under-payment of the Gross-Up Payment attributable due to such reduction plus interest on the amount uncertainty in the application of such repayment as the rate provided in Section 1274(d)(1) 4999 of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute 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)initial determination by the Accounting Firm and the Executive thereafter is required to make a payment of any Excise Tax, the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that Accounting Firm will determine the amount of any such excess is finally determined. The under-payment that has occurred and such amount will be promptly paid by the Employer or the Holding Company to or for the benefit of the Executive, but in no event shall reimburse it be paid later than the end of the year next following the year in which the Executive for all reasonable fees, expenses, and costs related to determining initially paid the reasonableness of any Company position in connection with this paragraph,Excise Tax.

Gross-Up Payment. This Section 14.1 applies if (i) In any amount required to be paid or distributed to the event that any payments under Executive pursuant to this Agreement or and any other compensation, benefit amounts otherwise required to be paid or other amount from distributed to the Executive by the Company for shall constitute a parachute payment within the benefit meaning of Section 280G of the Code, (ii) the aggregate of such parachute payments (the “Parachute Payments”) shall cause the Executive are to be subject to the excise tax imposed by on excess parachute payments under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "“Excise Tax"”), no or any successor or similar provision thereof and (iii) the total of all such payment Parachute Payments equals or exceeds one hundred ten percent ("Parachute Payment"110%) shall of the amount that could be reduced (except for required tax withholdings) and paid to the Executive without the Executive incurring an Excise Tax liability. In that event, the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, the Executive shall receive after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of any Excise Tax or other taxes on the Gross-Up Payment, Executive shall equal the amount which he would have received if the Excise Tax had not been imposed. The Gross-Up Payment shall be deemed to pay taxes at the sum of the following: (a) The Excise Taxes imposed on and paid by the Executive on account of the excess Parachute Payments; (b) Any federal income tax, social security tax, unemployment tax or Excise Tax Rate applicable at imposed on and paid by the time Executive as a result of the Gross-Up PaymentPayment required to be made under this Section 14.1; and (c) Any state income or other tax imposed on and paid by the Executive as a result of the Gross-Up Payment required to be made under this Section 14.1. The Gross-Up Payment shall be made within thirty (30) days following the date the Executive remits the related Excise Taxes or other taxes to the appropriate taxing authorities. The Gross-Up Payment shall in any event be paid to the Executive no later than the last day of the calendar year immediately following the calendar year in which the Executive remits the related Excise Taxes or other taxes. In the event that the any Excise Tax and/or other tax giving rise to a Gross-Up Payment is subsequently determined to be less than the amount taken into account hereunder at actually remitted by the time Executive and the Executive receives a Parachute Payment is maderefund of such Excise Tax and/or other tax, within thirty (30) days of receiving such refund the Executive shall repay to the Company at the time that the entire 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 as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made refund (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Paymentportion designated as interest), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,.

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount the Executive receives a notice from the Company for Internal Revenue Service to the benefit of Executive are effect that the amounts payable under the Agreement would be subject (in whole or part) to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax")) imposed under section 4999 of the Code, no within thirty (30) days after the date the Chairman of the Board receives a copy of such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and notice the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute amounts paid to the Executive under this Agreement (the "Total Payments") and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount the Executive receives a notice from the Company for the benefit of Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended Service to the effect that the amounts payable under the Consulting and Non-Competition Agreement would be subject (in whole or part)to the "Code") tax (including any applicable interest and penalties, the "Excise Tax")) imposed under section 4999 of the Code, no within thirty(30) days after the date the Chairman of the Board receives a copy of such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and notice the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is Taxis determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (iIf the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) In or the event that any payments under this Agreement or any other compensationvesting of the Options accelerate following a Change in Control as provided in the Stock Option Agreements, benefit or other amount from the Company will cause its independent auditors promptly to review, at the Company's sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the benefit of Executive are subject Executive's benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, the Stock Option Agreements or otherwise (the "Total Payments"). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986or any comparable state or local law, as amended or any interest or penalties with respect to such excise tax (the "Code") (including such excise tax, together with any applicable such interest and penalties, are collectively referred to as the "Excise Tax"), no such the Company will make an additional cash payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the a "Gross-Up Payment") to the Executive within 10 days after such determination equal to an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Parachute PaymentsTax, taxes based imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retain an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, Executive shall the Executive's tax rate will be deemed to pay taxes at be the Tax Rate applicable at highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company's auditors is made prior to the time of the Gross-Up Payment. In Executive is required to file a tax return reflecting the event that Total Payments, the Excise Tax is subsequently determined Executive will be entitled to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to receive from the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to such reduction plus interest the Company. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in the Executive's tax return pursuant to this Section 6(g), the Executive will be entitled to receive from the Company the full Gross-Up Payment calculated on the basis of the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed be payable by such tax authority within 10 days after the amount taken into account hereunder at the time a Parachute 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), Executive notifies the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,determination.

Gross-Up Payment. (i) In the event that any payments under payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with (A) the Company for or (B) any Person (as defined in Exhibit "A") whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called "Total Payments") would not be deductible (in whole or in part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of Executive are subject to the tax imposed by Section 4999 280G of the Internal Revenue Code of 1986Code, as amended (the "Code") (including any applicable interest and penaltiesthen, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any excise tax imposed under Section 4999 of the Code (the "Excise Tax Tax") on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date on which the Gross-Up Payment is calculated for purposes of this Section 5(e), 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 hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In the event that any payments under payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with (A) the Company for or (B) any Person (as defined in Exhibit “A”) whose actions result in a Change in Control or (C) any Person affiliated with the Company or such Person) (all such payments and benefits, including the Severance Payments, being hereinafter called “Total Payments”) would not be deductible (in whole or in part) by the Company, an affiliate or Person making such payment or providing such benefit as a result of Executive are subject to the tax imposed by Section 4999 280G of the Internal Revenue Code of 1986Code, as amended (the "Code") (including any applicable interest and penaltiesthen, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "“Gross-Up Payment"”) such that the net amount retained by the Executive, after deduction of any excise tax imposed under Section 4999 of the Code (the “Excise Tax Tax”) on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date on which the Gross-Up Payment is calculated for purposes of this Section 5(e), 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 hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In the event If it is determined that any payments or benefits of any kind, whether under this Employment Agreement or any other compensationplan, agreement or arrangement of the Corporation or of Del Monte Foods Company paid or payable to or for the benefit of Executive, or any other amount compensation from the Company whatever source paid or payable to or for the benefit of Executive are that is deemed contingent on a Change of Control (or that is otherwise deemed a parachute payment under Treas Reg Section 1.280G-1, Q&A-2) (collectively, the “Payment”) is an “excess parachute payment” within the meaning of Code Section 280G and would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "“Excise Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount cash payment (the "“Gross-Up Payment"”) in an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes, after deduction of including, without limitation, any Excise Tax on the Parachute Payments, income taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of imposed on the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the retain an amount taken into account hereunder at the time a Parachute Payment is made, 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 equal to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed imposed on the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Payment; provided, however, that such Gross-Up PaymentPayment shall only be paid if the original Payment exceeds the Section 280G excess parachute payment criterion by five percent (5%) or more. The Gross-Up Payment shall be subject to and paid net of any applicable withholding. The amount of any Gross-Up Payment or Excise Tax shall be reasonably determined by the Company after consultation with its legal and tax advisors.” Notwithstanding the foregoing, any Gross-Up Payment will be paid to Executive within thirty (30) days after the date the amount thereof has been determined, but in no event later than the end of the calendar year following the calendar year in which the income taxes and Excise Tax are remitted to the applicable taxing authority. If no Gross-Up Payment is payable to Executive pursuant to the above because the payment did not exceed the above-referenced 5% threshold, but it is determined that the Payment nonetheless would be subject to the Excise Tax, then the Payment will be either (i) reduced to an amount that would result in no portion of the Payment being subject to the Excise Tax, or (ii) paid in full, whichever of (i) or (ii), after taking into account all applicable taxes, including without limitation, any income taxes, employment taxes and the Company shall make an additional gross-up payment in respect of such excess Excise Tax (plus any interest or penalties payable in respect of such excess) all computed at the time that highest applicable marginal rate), results in the amount Executive’s receipt, on an after-tax basis, of such excess is finally determinedthe greater amount. The Company Except as expressly provided in this Second Amendment, all other provisions of the Employment Agreement and the First Amendment shall reimburse Executive for all reasonable fees, expenses, remain in full force and costs related to determining the reasonableness of any Company position in connection with this paragraph,effect.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“ Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive .. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with this paragraph,the principles of Code sections 280G(d)(3) and (4).

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with this paragraph,the principles of Code sections 280G(d)(3) and (4).

Gross-Up Payment. (i) In the event If it is determined that any payments or benefits of any kind, whether under this Employment Agreement or any other compensationplan, agreement or arrangement of the Corporation or of Del Monte Foods Company paid or payable to or for the benefit of Executive, or any other amount compensation from the Company whatever source paid or payable to or for the benefit of Executive are that is deemed contingent on a Change of Control (or that is otherwise deemed a parachute payment under Treas Reg Section 1.280G-1, Q&A-2) (collectively, the “Payment”) is an “excess parachute payment” within the meaning of Code Section 280G and would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "“Excise Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount cash payment (the "“Gross-Up Payment"”) in an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes, after deduction of including, without limitation, any Excise Tax on the Parachute Payments, income taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of imposed on the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the retain an amount taken into account hereunder at the time a Parachute Payment is made, 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 equal to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed imposed on the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Payment; provided, however, that such Gross-Up PaymentPayment shall only be paid if the original Payment exceeds the Code Section 280G excess parachute payment criterion by five percent (5%) or more. The Gross-Up Payment shall be subject to and paid net of any applicable withholding. The amount of any Gross-Up Payment or Excise Tax shall be reasonably determined by the Company after consultation with its legal and tax advisors.” Notwithstanding the foregoing, any Gross-Up Payment will be paid to Executive within thirty (30) days after the date the amount thereof has been determined, but in no event later than the end of the calendar year following the calendar year in which the income taxes and Excise Tax are remitted to the applicable taxing authority. If no Gross-Up Payment is payable to Executive pursuant to the above because the payment did not exceed the above-referenced 5% threshold, but it is determined that the Payment nonetheless would be subject to the Excise Tax, then the Payment will be either (i) reduced to an amount that would result in no portion of the Payment being subject to the Excise Tax, or (ii) paid in full, whichever of (i) or (ii), after taking into account all applicable taxes, including without limitation, any income taxes, employment taxes and the Company shall make an additional gross-up payment in respect of such excess Excise Tax (plus any interest or penalties payable in respect of such excess) all computed at the time that highest applicable marginal rate), results in the amount Executive’s receipt, on an after-tax basis, of such excess is finally determinedthe greater amount. The Company Except as expressly provided in this Second Amendment, all other provisions of the Employment Agreement and the First Amendment shall reimburse Executive for all reasonable fees, expenses, remain in full force and costs related to determining the reasonableness of any Company position in connection with this paragraph,effect.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retains an amount of the Gross-Up Payment, Executive shall Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of that Gross-Up Payment will be deemed to pay taxes made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax Rate applicable at is payable by the time of Executive with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment. In , if any, as determined by the event that Accounting Firm in accordance with the Excise Tax is subsequently determined to preceding provisions of this Section, will be less than paid by the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay Company to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion Executive within 5 business days of the Gross-Up Payment attributable to such reduction plus interest on the amount receipt of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,the

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount the Executive receives a notice from the Company for the benefit of Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended Service to the effect that the amounts payable under the Consulting and Non-Competition Agreement would be subject (in whole or part)to the "Code") tax (including any applicable interest and penalties, the "Excise Tax")) imposed under section 4999 of the Code, no within thirty(30) days after the date the Chairman of the Board receives a copy of such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and notice the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is Taxis determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“ Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as A-4 determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with the principles of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, any payment under this paragraph,Section 3.03 shall be made by March 15 of the year following the Executive’s Date of Termination.

Gross-Up Payment. (i) In the event that any payment or benefit received or ---------------- to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of 8 ================================================================================ 9 to such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,finally

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (" Total Payments") would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the a "Gross-Up Payment") in an amount such that after the net amount retained by Executive's payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company's expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm's determination. The existence of a dispute will not in any way affect the Executive's right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive's basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm'sdetermination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstandingthe preceding provisions of this Section 3.03, the Company will not have anyobligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the "110% Amount"). In that case, the Company shall make an additional gross-up payment value of the Total Payments (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in respect writing prior to the Date of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expensesTermination, and costs related to determining (2) any portion of the reasonableness Total Payments that, in the opinion of the Accounting Firm, does not constitute a "parachute payment" within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment orbenefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with this paragraph,the principles of Code sections 280G(d)(3) and (4).

Gross-Up Payment. (i) In If the event that any aggregate of all payments or benefits made or provided to the Employee under this Agreement or any Agreement, under all other compensation, benefit or other amount from plans and programs of the Company for or otherwise (the benefit of Executive are subject “Aggregate Payment”) is determined to the tax imposed by constitute a “parachute payment,” as such term is defined in Section 4999 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Code") (including any applicable interest and penalties, the "Excise Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive the Employee, prior to or coincident with the time any excise tax imposed by the earlier Section 4999 of the date Code (the “Excise Tax”) is payable with respect to such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by ExecutiveAggregate Payment, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executivethat, after deduction the imposition of any all penalties, income, excise and other federal, state and local taxes thereon, is equal to the sum of the Excise Tax on the Parachute Payments, taxes based upon the Tax Rate Aggregate Payment and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject interest and penalties imposed with respect to the Excise Tax and such additional amount (the “Gross-Up Payment”). For example, if the Excise Tax imposed with respect to the Aggregate Payment equals $1,000,000 and all penalties, income, excise and other federal, state and local taxes on the Gross-Up Payment equal $2,333,333, the Gross-Up Payment will be $3,333,333. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be paid to the Employee and the time of any Excise Tax payment pursuant to this Section 6 shall be made by an independent auditor (the “Auditor”) selected and shall notify Executive of its determinationpaid by the Company and reasonably acceptable to the Employee. The Company and Executive Auditor shall file all tax returns and reports regarding such Parachute Payments in be a manner consistent with the Company's reasonable good faith determinationnationally recognized United States public accounting firm. For purposes of determining the amount of the Gross-Up Payment, Executive the Employee shall be deemed to pay taxes income tax at the Tax Rate applicable at highest marginal rates of federal, state and local income taxation in the time of calendar year in which the Gross-Up PaymentPayment 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. In the event that the Excise Tax is subsequently finally determined to be less than the amount taken into account hereunder at in calculating the time a Parachute Payment is madeGross-Up Payment, Executive the Employee shall repay to the Company at Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined 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 Employee, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Employee’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment as at 120% of the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at in calculating the time a Parachute 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 payment of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Employee with respect of to such excess) at within five (5) business days following the time that the amount of such excess is finally determined. The Employee and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position cooperate with each other in connection with this paragraph,any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Employee in connection therewith shall be paid by the Company promptly upon notice of demand from the Employee.

Gross-Up Payment. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive’s employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called “Total Payments”), would be subject (in whole or part), to the tax (the “Excise Tax”) imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "“Code") (including any applicable interest and penalties, the "Excise Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "“Gross-Up Payment"”) such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. This Section 14.1 applies if (i) In any amount required to be paid or distributed to the event that any payments under Executive pursuant to this Agreement or and any other compensation, benefit amounts otherwise required to be paid or other amount from distributed to the Executive by the Company for shall constitute a parachute payment within the benefit meaning of Executive are subject to the tax imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), (ii) the aggregate of such parachute payments shall cause the Executive to be subject to the excise tax on excess parachute payments under Section 4999 of the Code (including any applicable interest and penalties, the "“Excise Tax"”), no or any successor or similar provision thereof and (iii) the total of all such payment parachute payments equals or exceeds one hundred ten percent ("Parachute Payment"110%) shall of the amount that could be reduced (except for required tax withholdings) and paid to the Executive without the Executive incurring an Excise Tax liability. In that event the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, the Executive shall receive after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and any Excise Tax or other taxes on the Gross-Up Payment, shall notify Executive of its determinationequal the amount which he would have received if the Excise Tax had not been imposed. The Company and Gross-Up Payment shall be the sum of the following: (a) The rate of the Excise Tax multiplied by the amount of the excess parachute payments; (b) Any federal income tax, social security tax, unemployment tax or Excise Tax imposed upon the Executive shall file all as a result of the Gross-Up Payment required to be made under this ARTICLE 14; and (c) Any state income or other tax returns and reports regarding such Parachute Payments in imposed upon the Executive as a manner consistent with result of the Company's reasonable good faith determinationGross-Up Payment required to be made under this ARTICLE 14. 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 for individuals in the calendar year in which the Excise Tax Rate applicable is required to be paid. In addition, the Executive shall be deemed to pay state income taxes at a rate determined in accordance with the time following formula: ( 1 (highest marginal rate of federal income taxation for individuals)) x (highest marginal rate of Virginia income taxes for individuals in the calendar year in which the Excise Tax is required to be paid). In the event the Executive is subject to the provisions of Section 68 of the Code, the combined federal and state income tax rate determined above shall be adjusted to reflect any loss in the federal deduction for state income taxes on the Gross-Up Payment. The Gross-Up Payment shall be made not later than the fifth (5th) day, or as soon thereafter as the Company deems practicable, following the date the Executive becomes subject to payment of the Excise Tax; provided, however, that if the amount of such payment cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the remainder of such payment (together with interest at the rate provided under Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but no later than the thirtieth (30th) day after the date the Executive becomes subject to the payment of the Excise Tax. In the event the amount of the estimated payment exceeds the amount subsequently determined to have been due, to the extent permitted by applicable law, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute the Gross-Up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, federal and state taxes imposed on the Gross-Up Payment being repaid by the Executive, if such repayment results in a reduction in Excise Tax and/or a federal or state tax deduction) plus interest on the amount of such repayment as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest or penalties payable in with respect of to such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,.

Gross-Up Payment. (i) In the event that the aggregate of any payments or benefits made or provided to the Executive under this Agreement (other than any payment pursuant to this Section 9) and under any other plans, programs or arrangements of the Company (the "Aggregate Payment") is determined to constitute a Parachute Payment, as such term is defined in Section 280G(b)(2) of the Code, or any other compensationsuccessor provision, benefit or other amount from the Company for the benefit of Executive are then, subject to the last sentence of this Section 9, the Company shall pay to the Executive, prior to the time any excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended or any successor provision (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no is payable with respect to such Aggregate Payment, an additional amount which, after the imposition of all income and excise taxes thereon, is equal to the Excise Tax on the Aggregate Payment. The determination of whether an Aggregate Payment constitutes a Parachute Payment and, if so, the amount to be paid to the Executive and the time of payment shall be made by an independent Tax Auditor (the "Parachute PaymentTax Auditor") jointly selected by the Company and the Executive and paid by the Company. The Tax Auditor shall be reduced a nationally recognized United States public accounting firm that has not, during the two years preceding the date of its selection, acted in any way on behalf of the Company or any affiliate thereof. If the Executive and the Company cannot agree on a firm to serve as the Tax Auditor, then the Executive and the Company shall each select one nationally recognized United States accounting firm and those two firms shall jointly select the accounting firm to serve as the Tax Auditor. Notwithstanding the foregoing (except for required tax withholdings) and but subject to the last sentence of this Section 9), in the event that the amount of the Executive's Excise Tax liability is subsequently determined to be greater than the Excise Tax liability with respect to which an initial payment to the Executive under this Section 9 has been made, the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") with respect to such that the net amount retained by Executive, after deduction of any additional Excise Tax on the Parachute Payments, taxes based upon the Tax Rate (and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, 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 interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or and penalties payable in respect of such excessthereon) at the time that the amount of such excess the actual Excise Tax liability is finally determined, such additional amount to be calculated in the same manner as such initial payment. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position cooperate with each other in connection with any proceeding or claim relating to the 22 existence or amount of liability for Excise Tax, and all expenses relating to any such proceeding or claim (including all reasonable attorney's fees and other expenses incurred by the Executive in connection therewith) shall be paid by the Company promptly upon written demand by the Executive. Notwithstanding any of the foregoing provisions of this paragraph,Section 9, the aggregate amounts payable to the Executive pursuant to this Section 9 with respect to the Excise Tax liability (exclusive of the aforesaid expenses incurred by the Executive in connection therewith) shall not exceed one million dollars ($1,000,000).

Gross-Up Payment. (i) In If the event that any aggregate of all payments or benefits made or provided to the Employee under this Agreement or any Agreement, under all other compensation, benefit or other amount from plans and programs of the Company for or otherwise (the benefit of Executive are subject “Aggregate Payment”) is determined to the tax imposed by constitute a “parachute payment,” as such term is defined in Section 4999 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the "“Code") (including any applicable interest and penalties, the "Excise Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive the Employee, prior to or coincident with the time any excise tax imposed by the earlier Section 4999 of the date Code (the “Excise Tax”) is payable with respect to such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by ExecutiveAggregate Payment, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executivethat, after deduction the imposition of any all penalties, income, excise and other federal, state and local taxes thereon, is equal to the sum of the Excise Tax on the Parachute Payments, taxes based upon the Tax Rate Aggregate Payment and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject interest and penalties imposed with respect to the Excise Tax and such additional amount (the “Gross-Up Payment”). For example, if the Excise Tax imposed with respect to the Aggregate Payment equals $1,000,000 and all penalties, income, excise and other federal, state and local taxes on the Gross-Up Payment equal $2,333,333, the Gross-Up Payment will be $3,333,333. The determination of whether the Aggregate Payment constitutes a parachute payment and, if so, the amount to be paid to the Employee and the time of any Excise Tax payment pursuant to this Section 6 shall be made by an independent auditor (the “Auditor”) selected and shall notify Executive of its determinationpaid by the Company and reasonably acceptable to the Employee. The Company and Executive Auditor shall file all tax returns and reports regarding such Parachute Payments in be a manner consistent with the Company's reasonable good faith determinationnationally recognized United States public accounting firm. For purposes of determining the amount of the Gross-Up Payment, Executive the Employee shall be deemed to pay taxes income tax at the Tax Rate applicable at highest marginal rates of federal, state and local income taxation in the time of calendar year in which the Gross-Up PaymentPayment 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. In the event that the Excise Tax is subsequently finally determined to be less than the amount taken into account hereunder at in calculating the time a Parachute Payment is madeGross-Up Payment, Executive the Employee shall repay to the Company at Company, within five (5) business days following the time that the amount of such reduction in the Excise Tax is finally determined 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 Employee, to the extent that such repayment results in a reduction in the Excise Tax and a dollar-for-dollar reduction in the Employee’s taxable income and wages for purposes of federal, state and local income and employment taxes, plus interest on the amount of such repayment as at 120% of the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at in calculating the time a Parachute 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 payment of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Employee with respect of to such excess) at within five (5) business days following the time that the amount of such excess is finally determined. The Employee and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position cooperate with each other in connection with any proceeding or claim relating to the existence or amount of liability for Excise Tax, and all expenses incurred by the Employee in connection therewith shall be paid by the Company promptly upon notice of demand from the Employee. Any payments made by the Company to or on behalf of the Employee pursuant to this paragraph,Section 6 shall be made in no event later than the end of the Employee’s taxable year next following the Employee’s taxable year in which the related taxes are remitted.

Gross-Up Payment. (i) In If any payment or benefit received by the event that any payments Executive under this Agreement or any other compensation, benefit plan or other amount from agreement with the Company for the benefit of Executive are (a “Benefit”) is subject to the tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended amended, or any interest or penalties are incurred by the Executive with respect to such tax (the "Code") (including any applicable interest and penaltiescollectively, “Excise Tax”), the "Company will pay the Executive an amount (“Gross Up Payment”) that covers: all Excise Taxes payable by Executive because of any such Benefit and all income and employment taxes and Excise Taxes on the Gross Up Payment. It is the Company’s intent that any payment under this Section 3.9 shall place the Executive in the same position that he would have been in had the Benefit not been subject to the Excise Tax". Provided, however, that the Gross-Up Payment shall be made only if the total value of the Benefit exceeds by 10 percent or more the dollar amount that is 3 times the Executive’s “base amount” (as defined in Section 280G of the Code). If the total value of the Benefit exceeds by less than 10 percent the dollar amount that is 3 times the Executive’s “base amount,” then no Gross-Up Payment shall be made and Benefits shall be capped at the amount that is $1 less than 3 times the Executive’s “base amount.” If a reduction is required, no such payment ("Parachute Payment") the Benefit shall be reduced (except for required tax withholdings) and first by reducing the Company Monthly Severance Payments provided under Section 3.4 of this Agreement, followed by any payments that are not subject to Section 409A. Any Gross Up Payment shall pay to Executive by the earlier of be made no later than the date such the Excise Tax is withheld form payments made to payable by the Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment it is withheld as provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposedbelow. The Company shall determine in good faith whether or not any of the Parachute Payments are Benefit is subject to the Excise Tax and withhold the amount of the Excise Tax from any Benefit or other remuneration payable to the Executive. Any such determination shall be made in good faith and after consultation with the Company’s independent certified public accountants or outside tax counsel. The Company shall also have the right, on behalf of the Executive, at its sole cost and expense, to contest any claim by the Internal Revenue Service (“Service”) that any Benefit is subject to the Excise Tax or file and pursue a claim for refund of any Excise Tax and shall notify Executive of its determinationpreviously paid. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent cooperate with the Company's reasonable good faith determinationCompany in any such proceeding and provide the Company with any notifications received by the Executive from the Service. For purposes If the Executive receives any refund of determining Excise Tax for which a Gross Up Payment has been made, the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay such refund to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Company.

Gross-Up Payment. (iIf the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) In or the event that vesting of stock options accelerate following a Change in Control as provided in any payments under this Agreement stock option agreement or any other compensationcertificate, benefit or other amount from the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the benefit of Executive are subject Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option agreement or certificate or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986or any comparable state or local law, as amended or any interest or penalties with respect to such excise tax (the "Code") (including such excise tax, together with any applicable such interest and penalties, are collectively referred to as the "“Excise Tax"”), no such the Company will make an additional cash payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) to the Executive within 10 days after such determination equal to an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Parachute PaymentsTax, taxes based imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retain an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, Executive shall the Executive’s tax rate will be deemed to pay taxes at be the Tax Rate applicable at highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time of the Gross-Up Payment. In Executive is required to file a tax return reflecting the event that Total Payments, the Excise Tax is subsequently determined Executive will be entitled to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to receive from the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the a Gross-Up Payment attributable calculated on the basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to such reduction plus interest the Company. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), the Executive will be entitled to receive from the Company the full Gross-Up Payment calculated on the basis of the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed be payable by such tax authority within 10 days after the amount taken into account hereunder at the time a Parachute 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), Executive notifies the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,determination.

Gross-Up Payment. (iIf the Executive becomes entitled to payments and benefits following a Change in Control under Section 6(f) In or the event that vesting of stock options accelerate following a Change in Control as provided in any payments under this Agreement stock option agreement or any other compensationcertificate, benefit or other amount from the Company will cause its independent auditors promptly to review, at the Company’s sole expense, the applicability of Code Section 4999 to any payment or distribution of any type by the Company to or for the benefit of Executive are subject Executive’s benefit, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any stock option agreement or certificate or otherwise (the “Total Payments”). If the auditor determines that the Total Payments result in an excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986or any comparable state or local law, as amended or any interest or penalties with respect to such excise tax (the "Code") (including such excise tax, together with any applicable such interest and penalties, are collectively referred to as the "“Excise Tax"”), no such the Company will make an additional cash payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) to the Executive within 10 days after such determination equal to an amount such that after payment by the net amount retained by ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Parachute PaymentsTax, taxes based imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retain an amount of the Gross-Up PaymentPayment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, Executive shall the Executive’s tax rate will be deemed to pay taxes at be the Tax Rate applicable at highest statutory marginal state and federal tax rate (on a combined basis) then in effect. If no determination by the Company’s auditors is made prior to the time of the Executive is required to file a tax return reflecting the Total Payments, the Executive will be entitled to receive from the Company a Gross-Up Payment. In Payment calculated on the event that basis of the Excise Tax the Executive reported in such tax return, within 10 days after the later of the date on which the Executive files such tax return or the date on which the Executive provides a copy thereof to the Company. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is subsequently determined by the Company’s independent auditors or reflected in the Executive’s tax return pursuant to this Section 6(g), the Executive will be entitled to receive from the Company the full Gross-Up Payment calculated on the basis of the amount of Excise Tax determined to be less than payable by such tax authority within 10 days after the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to notifies the Company at the time that the amount of such reduction determination. Notwithstanding the foregoing, in Excise Tax is finally determined the portion of event the Company reasonably determines that the Gross-Up Payment attributable is subject to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) 409A of the Code or other applicable provision of Code, such payment will be made in the Code but only to same calendar year in which the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Total Payments are made.

Gross-Up Payment. (i) In the event that any payment or benefit received or ----------------- to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,finally

Gross-Up Payment. (a) To the extent that (i) In the event that grant of the Restricted Shares under Section 6 hereof, (ii) the payment of any payments under this Agreement or any other compensation, benefit Severance Payment (or other amount from payment or benefit within the Company for the benefit meaning of Executive are subject to the tax imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”)) under Sections 16, 17 and 18 hereof or (iii) the reimbursement of any Relocation Expenses under Section 9 hereof (collectively, the “Payments”) would be subject to taxes imposed against Executive under the Code (including any applicable interest excise tax imposed by Section 4999 of the Code) and penaltiesany state or local tax code or regulations, if applicable, (collectively, the "Excise Tax"“Taxes”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then the Company shall pay pay, and Executive will be entitled to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executivereceive, an additional amount payment (the "“Gross-Up Payment"”) in an amount such that after payment by the net amount retained by Executive, after deduction Executive of all applicable Taxes including any Excise Tax on the Parachute Payments, taxes based Taxes imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the retains an amount of the Gross-Up Payment, Executive shall be deemed Payment equal to pay taxes at the Tax Rate applicable at the time Taxes imposed by reason of the Gross-Up PaymentPayments. In For the event avoidance of doubt, it is further provided that the Excise Tax is subsequently determined to be less than Company shall pay all Taxes as a result of any final determination by the amount taken into account hereunder at Internal Revenue Service that the time a Parachute Payment is made, Executive shall repay right of first refusal granted to the Company at in the time that Restricted Stock Agreement does not decrease the value of the Restricted Shares as of the date of the grant to the amount of such reduction in Excise Tax is finally determined agreed upon by the portion of Company and the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to Executive. To the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus Executive incurs any interest or penalties payable in with respect of to such excessTaxes (other than interest and penalties due to Executive’s failure to timely make any applicable election, file a tax return or pay taxes shown on his return) at (the time that “Expenses”), then the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expensessuch Expenses within five (5) days after Executive incurs such Expenses. This reimbursement obligation shall remain in effect during the applicable statute of limitations applicable to any such Expenses, and costs related the amount of Expenses eligible for reimbursement during any taxable year of Executive will not affect the amount of Expenses eligible for reimbursement in any other taxable year of Executive. This right to determining reimbursement is not subject to liquidation or exchange for another benefit. To the reasonableness extent the reimbursement by the Company of any Expenses is taxable to Executive, such taxable amount shall be subject to a Gross-Up Payment by the Company position as provided herein. (b) The Company shall bear any expense necessary in connection with determining whether a Gross-Up Payment is required pursuant to this paragraph,Agreement. The Gross-Up Payment, if any, shall be paid by the Company to Executive within five (5) days after remittance by the Executive of the applicable Taxes to the Internal Revenue Service and the submission to the Company of appropriate documentation of such remittance as may be required by the Company.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payments under this Agreement or any other compensationpayment, award, benefit or other amount from the Company distribution (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of Executive are provided under this Agreement or otherwise (the “Payments”) would be subject to the a twenty percent additional tax imposed under Section 409A or any interest or penalties are incurred by Section 4999 of the Internal Revenue Code of 1986Executive with respect to such additional tax (such additional tax, as amended (the "Code") (including together with any applicable such interest and penalties, are hereinafter collectively referred to as the "Excise “409A Tax"”), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount payment (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by Executive, after deduction Executive of all taxes (including any Excise Tax on the Parachute Payments, taxes based 409A Taxes) imposed upon the Tax Rate and Excise Tax upon Gross-Up Payment, Executive retains an amount of the payment provided for by this Section 5(c), shall be Gross-Up Payment equal to the amount sum of (x) the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether 409A Taxes, imposed upon the Payments and (y) the product of any deductions disallowed because of the Parachute Payments are subject to inclusion of the Excise Tax Gross-Up Payment in Executive’s adjusted gross income and the amount highest applicable marginal rate of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments income taxation for the calendar year in a manner consistent with which the Company's reasonable good faith determinationGross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to (A) pay federal income taxes at the Tax Rate applicable highest marginal rates of federal income taxes at the time highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. (ii) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payment, award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of Executive (the “Payments”) as a result of the transactions consummated on July 30, 2008, pursuant to which BT Triple Crown Merger Co., Inc. merged with and into the Company (the “Transaction”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code (the “Code”), or any interest or penalties are incurred by Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Executive an additional payment (a “Gross-Up Payment”) in an amount such that after payment by Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay be deemed to the Company (A) pay federal income taxes at the time that highest marginal rates of federal income taxes at the amount highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such reduction in Excise Tax is finally determined state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the portion inclusion of the Gross-Up Payment attributable in Executive’s adjusted gross income. (iii) Subject to such reduction plus interest on the provisions of Section 9(i) and 9(ii), as applicable, all determinations required to be made under this Section 9, including whether and when a Gross-Up Payment is required, the amount of such repayment Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by a nationally recognized public accounting firm that is selected by the Company (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the receipt of notice from the Company or Executive that there has been a Payment, or such earlier time as is requested by the Company or Executive (collectively, the “Determination”). All fees and expenses of the Accounting Firm shall be borne solely by the Company, and the Company shall enter into any reasonable agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 9 with respect to any Payments made to Executive shall be made to the relevant tax authorities no later than the date on which the 409A Tax or Excise Tax on such Payments is due to the relevant tax authorities. If the Accounting Firm determines that no 409A Tax or Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the 409A Tax or Excise Tax, if any, on Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty. (iv) As a result of the uncertainty in the application of Section 409A and 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that Executive thereafter is required to make payment of any Excise Tax, 409A Tax, or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such Underpayment (together with interest at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code Code) shall be promptly paid by the Company to or other applicable provision for the benefit of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute 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)Payment exceeds the amount necessary to reimburse Executive for his Excise Tax or 409A Tax, the Company Accounting Firm shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that determine the amount of the Overpayment that has been made and any such excess is finally determinedOverpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax or 409A Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,any contest or disputes with the Internal Revenue Service in connection with the Excise Tax or 409A Tax. (v) Executive expressly acknowledges and agrees that the Gross-Up Payment in Paragraph 9(ii) is limited exclusively to Excise Tax that may come due in connection with Payments to or for the benefit of Executive as a result of the Transaction, and that Executive will not be entitled to any Gross-Up Payments as a result of any change of control that may occur following the Effective Date.

Gross-Up Payment. (i) In the event it shall be determined that any payments under this Agreement or any other compensation, benefit payment or other amount from distribution by the Company to or for the benefit of Executive are the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the "Severance Payments"), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986Code, as amended or any interest or penalties are incurred by the Executive with respect to such excise tax (the "Code") (including such excise tax, together with any applicable such interest and penalties, penalties are hereinafter collectively referred to as the "Excise Tax"), no then the Executive shall be entitled to receive in the same year in which such compensation, payment or distribution is made an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the a "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute Severance Payments, taxes based upon the Tax Rate any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the amount the Executive would have received if had there been no Excise Tax had been imposedimposed on the Severance Payments. The Any Gross-Up payment, as determined pursuant to this Section VII, due upon the Executive's termination of employment shall by paid by the Company shall determine to the Executive as soon as administratively practicable, but in good faith whether any no event later than March 15 of the Parachute Payments are subject year following the calendar year in which the Executive's termination of employment occurs. All determinations required to the Excise Tax be made under this Section VII.b., including whether a Gross-Up Payment is required and the amount of any Excise Tax and such Gross-Up Payment, shall notify Executive of its determination. The be made by a nationally recognized accounting firm selected by the Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with (the Company's reasonable good faith determination"Accounting Firm"). For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the Tax Rate highest marginal rate of Federal income taxation applicable at to individuals for the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such reduction plus interest be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of the Executive's residence on the amount date of terminating, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such repayment as state and local taxes. Any determination by the rate provided in Section 1274(d)(1) of Accounting Firm shall be binding upon the Code or other applicable provision of Company and the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made Termination Provisions (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Paymentother than Change in Control), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,

Gross-Up Payment. (ia) In Notwithstanding the event that above, if any payments of the compensation payable upon termination of Employee’s employment as provided for above (the “Payments”) triggers the application of Internal Revenue Code Section 280G, or makes Employee liable for payment of the excise tax (the “Excise Tax”) provided for under this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are subject to the tax imposed by Section 4999 of the Internal Revenue Code Code, or any other statute or regulation under which Employee may be penalized as a result of 1986the nature or amount of such compensation, as amended (then Employer or the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company acquiring or successor entity of Employer shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, Employee an additional amount (the "“Gross-Up Payment"Up”) such that the net after-tax amount retained by Executivethe Employee, after deduction of (X) any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and (Y) any federal, state, local or foreign income, employment or other tax and Excise Tax upon the any payment provided for by this Section 5(c)Section, shall be equal to the Payments, reduced by the amount of any United States federal, state and local income or employment tax liability of the Executive would have received Employee calculated as if no the Payments were not subject to the Excise Tax had been imposedTax. The Company shall determine in good faith determination of whether any of the Parachute Payments are will be subject to the Excise Tax and the amount of any such Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall will be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. made by Employer’s regular independent public accounting firm. (b) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is madeunder this Section , Executive Employee shall repay to the Company Employer at the time that the amount of such reduction in of Excise Tax is finally determined determined, an amount equal to the portion sum of the Gross-Up Payment attributable to such following: (i) the amount of the reduction plus of the Excise Tax, (ii) the amount of the reduction in all other taxes generated by the reduction in the Excise Tax, and (iii) interest on the amount of such repayment as the sum of (i) and (ii) at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. Code. (c) In the event that the Excise Tax is determined to exceed the amount previously taken into account hereunder at under the time a Parachute Payment is made Section (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up PaymentUp), the Company Employer shall make an additional grossGross-up Up payment in respect of to such excess (plus any interest or penalties payable in with respect of to such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining determined in accordance with the reasonableness of any Company position in connection with this paragraph,principles set forth above.

Gross-Up Payment. (ia) In If the event that any payments and benefits provided to Employee under this Agreement or under any other compensationagreement with, benefit or other amount from plan of, the Company for (the benefit of Executive are subject to the tax imposed by "Total Payment") (i) constitute a "parachute payment" as defined in Section 4999 280G of the Internal Revenue Code of 1986, as amended (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 Paragraph 10(a), be subject to the excise tax imposed by Code Section 4999, then Employee's payments and benefits under this Agreement 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 applicable 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 under Paragraph 10(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 "Excise Tax"Company will determine which payments and benefits to reduce. If, as a result of any reduction required by this Paragraph 10(a), no such payment 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 a "Parachute Paymentparachute payment" as defined in Code Section 280G and exceeds three times Employee's "base amount" as defined under Code Section 280G(b)(3) shall be reduced (except for required tax withholdings) and by 10% or more of three times Employee's base amount, the Company shall pay provide to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by ExecutiveEmployee, in cash, an additional payment in an amount to cover the full excise tax due under Code Section 4999, plus Employee's state and federal income, employment, excise, and other taxes (including interest and penalties) on this additional payment (the "Gross-Up Payment"). Any amount payable under this Paragraph 10(b) such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal paid as soon as possible following the date of Employee's termination, but in no event later than 30 days after such date. (c) All determinations required to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith be made under this Paragraph 10, including whether any of the Parachute Payments reductions are subject to the Excise Tax and necessary or whether a Gross-Up Payment is required, the amount of any Excise Tax such Gross-Up Payment and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding the assumptions to be used in determining such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at made by the Tax Rate applicable accounting firm used by the Company at the time of such determination (the Gross-Up Payment"Accounting Firm"). The Accounting Firm shall provide detailed supporting calculations both to the Company and to Employee within 15 business days of the receipt of notice from the Company or Employee that there has been a termination of Employee's employment, or such earlier time as is requested by the Company. In the event that the Excise Tax Accounting Firm is subsequently determined serving as accountant or auditor for the individual, entity, or group effecting the change in control transaction, Employee may appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be less than referred to as the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be borne solely by the Company. (d) In the event Employee is entitled to a Gross-Up Payment attributable to such reduction plus interest on under Paragraph 10(b) and the amount of such repayment as Internal Revenue Service subsequently increases the rate provided excise tax computation described in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute 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 PaymentParagraph 10(b), the Company shall reimburse Employee for the full amount necessary to make Employee whole on an additional grossafter-up payment in respect tax basis (less any amounts received by Employee that Employee would not have received had the computations initially been computed as subsequently adjusted), including the value of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expensesunderpaid excise tax, and costs any related interest and/or penalties due to determining the reasonableness of any Company position in connection with this paragraph,Internal Revenue Service.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“ Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 3.03, the Company will not have any obligation to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of make the Gross-Up PaymentPayment unless the value of the Total Payments exceeds 110% of the maximum amount of parachute payments that could be paid to the Executive without any imposition of golden parachute excise taxes under Code sections 280G and 4999 (the “110% Amount”). In that case, the value of the Total Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with the principles of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, any payment under this paragraph,Section 3.03 shall be made by March 15 of the year following the Executive’s Date of Termination.

Gross-Up Payment. (i) In the event that any payments under this Agreement or any other compensation, benefit or other amount the Executive receives a notice from the Company for Internal Revenue Service to the benefit of Executive are effect that the amounts payable under the Consulting and Non-Competition Agreement would be subject (in whole or part) to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax")) imposed under section 4999 of the Code, no within thirty (30) days after the date the Chairman of the Board receives a copy of such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and notice the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Parachute PaymentsTotal Payments and any federal, state and local income and employment taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(1section 1274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (ia) In the event that any payments under Severance Payments paid or payable to the Executive or for his benefit pursuant to the terms of this Agreement or any other compensation, benefit or other amount from the Company for the benefit of Executive are otherwise in connection with a Change in Control (“Total Payments”) would be subject to the tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such then the Executive will be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that after the net amount retained by Executive’s payment of all taxes (including any interest, after deduction of penalties, additional tax, or similar items imposed with respect to the Gross-Up Payment and the Excise Tax), including any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. (b) An initial determination as to whether a Gross-Up Payment is required pursuant to this Agreement and the amount of any that Gross-Up Payment will be made at the Company’s expense by an Accounting Firm selected by the Executive and reasonably acceptable to the Company. The Accounting Firm will provide its determination, together with detailed supporting calculations and documentation, to the Company and the Executive within 10 business days after the Date of Termination, or such other time as requested by the Company and the Executive. If the Accounting Firm determines that no Excise Tax and shall notify is payable by the Executive of with respect to the Payments, it will furnish the Executive with an opinion reasonably acceptable to the Executive that no Excise Tax will be imposed with respect to the Payments. Within 10 business days after the Accounting Firm delivers its determination to the Executive, the Executive will have the right to dispute the determination. The Gross-Up Payment, if any, as determined by the Accounting Firm in accordance with the preceding provisions of this Section, will be paid by the Company to the Executive within 5 business days of the receipt of the Accounting Firm’s determination. The existence of a dispute will not in any way affect the Executive’s right to receive the Gross-Up Payment in accordance with the determination. If there is no dispute, the determination will be final, binding, and conclusive upon the Company and the Executive. If there is a dispute, then the Company and the Executive shall file will together select a second Accounting Firm, which will review the determination and the Executive’s basis for the dispute and then render its own determination, which will be final, binding, and conclusive on the Company and the Executive. The Company will bear all tax returns and reports regarding costs associated with that determination, unless the determination is not greater than the initial determination, in which case all such Parachute Payments costs will be borne by the Executive. (c) The value of any non-cash benefits or any deferred payment or benefit paid or payable to the Executive will be determined in a manner consistent accordance with the Company's reasonable good faith determinationprinciples of Code section 280G(d)(3) and (4). For purposes of determining the amount of the Gross-Up Payment, the Executive shall will be deemed to pay federal income taxes at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay to the Company at the time that the amount of such reduction calendar year in Excise Tax is finally determined the portion of which the Gross-Up Payment attributable is to such be made and applicable 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 maximum reduction plus interest in federal income taxes that would be obtained from deduction of those state and local taxes. (d) Notwithstanding anything contained in this Agreement to the contrary, in the event that, according to the Accounting Firm’s determination, an Excise Tax will be imposed on the Total Payments, the Company will pay to the applicable government taxing authorities as Excise Tax withholding the amount of such repayment as the rate provided Excise Tax that the Company has actually withheld from the Total Payments in accordance with applicable law. (e) Notwithstanding the preceding provisions of this Section 1274(d)(1) 3.03, the Company will not have any obligation to make the Gross-Up Payment unless the value of the Code or other applicable provision Total Payments exceeds 110% of the Code but only maximum amount of parachute payments that could be paid to the extent that such interest is paid to ExecutiveExecutive without any imposition of golden parachute excise taxes 4 under Code sections 280G and 4999 (the “110% Amount”). In the event that the Excise Tax is determined to value of the Total Payments does not exceed the amount taken into account hereunder at 110% Amount, the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time value of the Gross-Up PaymentTotal Payments will be reduced to the extent necessary so that, within the meaning of Code section 280G(b)(2)(A)(ii), the Company shall make an additional gross-up payment aggregate present value of the payments in respect the nature of such excess compensation to (plus any interest or penalties payable for the benefit of) the Executive that are contingent on a Change in respect Control (with a Change in Control for this purpose being defined in terms of such excessa “change” described in Code section 280G(b)(2)(A)(i) at or (ii)), do not exceed 2.999 multiplied by the time that the amount of such excess is finally determinedBase Amount. The Company shall reimburse Executive for all reasonable feesFor this purpose, expensescash Severance Payments will be reduced first (if necessary, to zero), and costs related all other, non-cash Severance Payments will be reduced next (if necessary, to determining zero). For purposes of the reasonableness limitation described in the preceding sentence, the following will not be taken into account: (1) any portion of the Total Payments the receipt or enjoyment of which the Executive effectively waived in writing prior to the Date of Termination, and (2) any portion of the Total Payments that, in the opinion of the Accounting Firm, does not constitute a “parachute payment” within the meaning of Code section 280G(b)(2). (f) For purposes of this Section 3.03, the value of any Company position non-cash benefit or any deferred payment or benefit included in connection the Total Payments will be determined by the Accounting Firm in accordance with the principles of Code sections 280G(d)(3) and (4). (g) Notwithstanding the foregoing, any payment under this paragraph,Section 3.03 shall be made by March 15 of the year following the Executive’s Date of Termination.

Gross-Up Payment. (i) In the event that any payment or benefit received or to be received by the Executive in connection with a Change in Control of the Company or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control of the Company for or any person affiliated with the benefit of Executive are Company or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to the reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed 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 federal, state or local income tax deduction) plus interest on the amount of such repayment as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of such excess) at the time that the amount of such excess is if finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. 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 (i) In whether paid or payable or distributed or distributable pursuant to the event that any payments under terms of this Agreement or otherwise, but determined without regard to any other compensationadditional payments required under this Section 9) (a “Payment”) to be subject Xx. Xxxxxx X. Ferber May 15, benefit or other amount from the Company for the benefit 2009 Page 12 of Executive are subject 19 to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986(such excise tax, as amended (the "Code") (including together with any applicable interest and penaltiesor penalties incurred by you with respect to such excise tax, the "“Excise Tax"”), no such then you shall be entitled to receive an additional payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "a “Gross-Up Payment"”) in an amount such that the net amount retained after payment by Executiveyou of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax on the Parachute Payments, income taxes based upon the Tax Rate (and any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the payment provided for by this Section 5(c)Gross-Up Payment, shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the you will retain an amount of the Gross-Up Payment, Executive shall be deemed Payment equal to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax imposed upon the Payments. Notwithstanding the foregoing, if it is subsequently determined that you are entitled to be less than the amount taken into account hereunder at the time a Parachute Payment is made, 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 but that the Payments would not be subject to such reduction plus interest on the Excise Tax if the Payments were reduced by an amount of such repayment as the rate provided in Section 1274(d)(1) that is less than 10% of the Code or other applicable provision Payments, then the Payments will be reduced to the maximum amount that would not result in the imposition of the Code but only 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 you fail to elect an order, then the payments to be reduced will be determined in a manner which has the least economic cost to you and, to the extent that such interest the economic cost is paid equivalent, will be reduced in the inverse order of when payment would have been made to Executive. In you, until the event that the Excise Tax reduction is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,achieved.

Gross-Up Payment. (i) In the event that any payment or benefit received or ---------------- to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount ================================================================================ 9 amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In If any payment or benefit received by the event that any payments Executive under this Agreement or any other compensation, benefit plan or other amount from agreement with the Company for the benefit of Executive are (a “Benefit”) is subject to the tax imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended amended, or any interest or penalties are incurred by the Executive with respect to such tax (the "Code") (including any applicable interest and penaltiescollectively, “Excise Tax”), the "Company will pay the Executive an amount (“Gross Up Payment”) that covers: all Excise Taxes payable by Executive because of any such Benefit and all income and employment taxes and Excise Taxes on the Gross Up Payment. It is the Company’s intent that any payment under this Section 3.9 shall place the Executive in the same position that he would have been in had the Benefit not been subject to the Excise Tax". Provided, however, that the Gross-Up Payment shall be made only if the total value of the Benefit exceeds by 10 percent or more the dollar amount that is 3 times the Executive’s “base amount” (as defined in Section 280G of the Code). If the total value of the Benefit exceeds by less than 10 percent the dollar amount that is 3 times the Executive’s “base amount,” then no Gross-Up Payment shall be made and Benefits shall be capped at the amount that is $1 less than 3 times the Executive’s “base amount.” If a reduction is required, no such payment ("Parachute Payment") the Benefit shall be reduced (except for required tax withholdings) and first by reducing the Company Monthly Severance Payments provided under Section 3.4 of this Agreement, followed by any payments that are not subject to Section 409A. Any Gross Up Payment shall pay to Executive by the earlier of be made no later than the date such the Excise Tax is withheld form payments made to payable by the Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment it is withheld as provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. below.The Company shall determine in good faith whether or not any of the Parachute Payments are Benefit is subject to the Excise Tax and withhold the amount of the Excise Tax from any Benefit or other remuneration payable to the Executive. Any such determination shall be made in good faith and after consultation with the Company’s independent certified public accountants or outside tax counsel. The Company shall also have the right, on behalf of the Executive, at its sole cost and expense, to contest any claim by the Internal Revenue Service (“Service”) that any Benefit is subject to the Excise Tax or file and pursue a claim for refund of any Excise Tax and shall notify Executive of its determinationpreviously paid. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent cooperate with the Company's reasonable good faith determinationCompany in any such proceeding and provide the Company with any notifications received by the Executive from the Service. For purposes If the Executive receives any refund of determining Excise Tax for which a Gross Up Payment has been made, the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up Payment. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute Payment is made, Executive shall repay such refund to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment as the rate provided in Section 1274(d)(1) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,Company.

Gross-Up Payment. This Section 14.1 applies if (i) In any amount required to be paid or distributed to the event that any payments under Executive pursuant to this Agreement or and any other compensation, benefit amounts otherwise required to be paid or other amount from distributed to the Executive by the Company for shall constitute a parachute payment within the benefit meaning of Executive are subject to the tax imposed by Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "“Code"”), (ii) the aggregate of such parachute payments shall cause the Executive to be subject to the excise tax on excess parachute payments under Section 4999 of the Code (including any applicable interest and penalties, the "“Excise Tax"”), no or any successor or similar provision thereof and (iii) the total of all such payment parachute payments equals or exceeds one hundred ten percent ("Parachute Payment"110%) shall of the amount that could be reduced (except for required tax withholdings) and paid to the Executive without the Executive incurring an Excise Tax liability. In that event, the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, the Executive shall receive after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and any Excise Tax or other taxes on the Gross-Up Payment, shall notify Executive of its determinationequal the amount which he would have received if the Excise Tax had not been imposed. The Company and Gross-Up Payment shall be the sum of the following: (a) The rate of the Excise Tax multiplied by the amount of the excess parachute payments; (b) Any federal income tax, social security tax, unemployment tax or Excise Tax imposed upon the Executive shall file all as a result of the Gross-Up Payment required to be made under this ARTICLE 14; and (c) Any state income or other tax returns and reports regarding such Parachute Payments in imposed upon the Executive as a manner consistent with result of the Company's reasonable good faith determinationGross-Up Payment required to be made under this ARTICLE 14. 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 for individuals in the calendar year in which the Excise Tax Rate applicable is required to be paid. In addition, the Executive shall be deemed to pay state income taxes at a rate determined in accordance with the time following formula: ( 1 (highest marginal rate of federal income taxation for individuals)) x (highest marginal rate of [Virginia] income taxes for individuals in the calendar year in which the Excise Tax is required to be paid). In the event the Executive is subject to the provisions of Section 68 of the Code, the combined federal and state income tax rate determined above shall be adjusted to reflect any loss in the federal deduction for state income taxes on the Gross-Up Payment. The Gross-Up Payment shall be made not later than the fifth (5th) day, or as soon thereafter as the Company deems practicable, following the date the Executive becomes subject to payment of the Excise Tax; provided, however, that if the amount of such payment cannot be finally determined on or before such day, the Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payment and shall pay the remainder of such payment (together with interest at the rate provided under Section 1274(b)(2)(B) of the Code) as soon as the amount can be determined but no later than the thirtieth (30th) day after the date the Executive becomes subject to the payment of the Excise Tax. In the event the amount of the estimated payment exceeds the amount subsequently determined to have been due, to the extent permitted by applicable law, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time a Parachute the Gross-Up Payment is made, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax, federal and state taxes imposed on the Gross-Up Payment being repaid by the Executive, if such repayment results in a reduction in Excise Tax and/or a federal or state tax deduction) plus interest on the amount of such repayment as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute the Gross-Up Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest or penalties payable in with respect of to such excess) at the time that the amount of such excess is finally determined. The Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining the reasonableness of any Company position in connection with this paragraph,.

Gross-Up Payment. (i) In the event that any payments under payment or benefit received or to be received by the Executive (whether pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with (A) the Company, (B) any Person (as defined in Section 5(f)) whose actions result in a “change in control” (for purposes of Section 280G of the Internal Revenue Code (the “Code”)) or (C) any Person affiliated with the Company for the benefit of Executive are or such Person) (all such payments and benefits being hereinafter called “Payments”) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code or the additional tax imposed by Section 409A of 1986, as amended the Code (the "Code") or any interest or penalties with respect to such taxes (including any applicable interest and penaltiescollectively, the "“Excise Tax"”)), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and then, the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount (the "“Gross-Up Payment"”) such that after payment by the net amount retained by ExecutiveExecutive of all taxes (including any interest or penalties imposed with respect to such taxes), after deduction of including any Excise Tax Tax, imposed on the Parachute PaymentsGross-Up Payment, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any retains an amount of the Parachute Payments are subject Gross-Up Payment equal to the Excise Tax and imposed upon the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationPayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay taxes federal income tax at the Tax Rate applicable at highest marginal rate of federal income taxation in the time of calendar year in which the Gross-Up PaymentPayment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date 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. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is if finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Payments. It is understood that the application of this paragraph,Section 6 and Sections 280G and 409A may have differing interpretations; however, the parties intend that the Gross-Up Payment be determined in a manner that is most favorable to the Executive.

Gross-Up Payment. (i) In the event that any payment or ---------------- benefit received or to be received by the Executive in connection with a Change in Control or the termination of the Executive's employment, whether such payments under or benefits are received pursuant to the terms of this Agreement or any other compensationplan, benefit arrangement or other amount from agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company for the benefit of Executive are or such person (all such payments and benefits being hereinafter called "Total Payments"), would be subject (in whole or part), to the tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (including any applicable interest and penalties, the "Excise Tax"), no such payment ("Parachute Payment") shall be reduced (except for required tax withholdings) and the Company shall pay to the Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, an additional amount amounts (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Parachute Payments, taxes based upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), shall as may be equal necessary to the amount place the Executive would have received in the same after-tax position as if no Excise Tax portion of the Total Payments had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determination. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay taxes at the Tax Rate applicable at the time of the Gross-Up PaymentTax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at hereunder, the time a Parachute Payment is made, Executive shall repay to the Company Company, at the time that the amount of such reduction in Excise Tax is finally determined 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 as at the rate provided in Section 1274(d)(11274(b)(2)(B) of the Code or other applicable provision of the Code but only to the extent that such interest is paid to ExecutiveCode. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time a Parachute Payment is made (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional grossGross-up payment Up Payment in respect of such excess (plus any interest interest, penalties or penalties additions payable in by the Executive with respect of to such excess) at the time that the amount of such excess is finally determined. The Executive and the Company shall reimburse Executive for all reasonable fees, expenses, and costs related to determining each reasonably cooperate with the reasonableness of any Company position other in connection with this paragraph,any administrative or judicial proceedings concerning the existence or amount of liability for Excise Tax with respect to the Total Payments.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payments under this Agreement payment or any other compensation, benefit or other amount from distribution by the Company to or for the benefit of Executive are subject Executive, whether paid or payable or distributed or distributable pursuant to the tax imposed by terms of this Agreement or otherwise (the “Payment”), would constitute an “excess parachute payment” within the meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the "“Code") (including any applicable interest and penalties, the "Excise Tax"”), no such payment ("Parachute Payment") Executive shall be reduced (except for required tax withholdings) and the Company shall pay to Executive by the earlier of the date such Excise Tax is withheld form payments made to Executive or the date such Excise Tax becomes due and payable by Executive, paid an additional amount (the "“Gross-Up Payment"”) such that the net amount retained by Executive, Executive after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Parachute PaymentsCode, taxes based and any federal, state and local income and employment tax and excise tax imposed upon the Tax Rate and Excise Tax upon the payment provided for by this Section 5(c), Gross-Up Payment shall be equal to the amount the Executive would have received if no Excise Tax had been imposed. The Company shall determine in good faith whether any of the Parachute Payments are subject to the Excise Tax and the amount of any Excise Tax and shall notify Executive of its determination. The Company and Executive shall file all tax returns and reports regarding such Parachute Payments in a manner consistent with the Company's reasonable good faith determinationPayment. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the Tax Rate applicable at highest marginal rate of federal income and employment taxation in the time of calendar year in which the Gross-Up Payment. In the event that the Excise Tax Payment is subsequently determined to be less than the amount taken into account hereunder made and state and local income taxes at the time highest marginal rate of taxation in the state and locality of Executive’s residence (or, if greater, the state and locality in which Executive is required to file a Parachute Payment is madenonresident income tax return with respect to the Payment) on the date on which the Executive’s employment terminates, Executive net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. 4.7.1. All determinations to be made under this Section 4.7 shall repay be made by a nationally-recognized independent public accountant (the “Accounting Firm”), which firm shall provide its determinations and any supporting calculations both to the Company at and Executive within thirty (30) days of each of a Change of Control and the time that termination of Executive’s employment. Any such determination by the amount Accounting Firm shall be binding upon the Company and Executive. Within five (5) days after the Accounting Firm’s determination, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such reduction amounts as are then due to Executive pursuant to this Section 4.7. 4.7.2. Executive shall notify the Company in Excise Tax is finally determined writing of any claim by the portion Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of the Gross-Up Payment attributable (taking into account any amounts theretofore already paid by the Company). Such notification shall be given as soon as practicable but no later than ten (10) business days after Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. Executive shall not pay such claim prior to the expiration of the thirty (30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such reduction plus 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: (a) give the Company any information reasonably request by the Company relating to such claim; (b) take such action in connection with contesting such claim as the Company shall 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; (c) cooperate with the Company in good faith in order to effectively contest such claim; and (d) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold Executive harmless, on an after-tax basis, for any excise tax, income tax or employment tax, including interest and penalties, with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 4.7.2, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided further, however, that if the Company directs Executive to pay such claim and xxx for a refund the Company shall advance the amount of such repayment as the rate payment to Executive, on an interest-free basis and shall indemnify and hold Executive harmless, on an after-tax basis, from any excise tax, income tax or employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided in Section 1274(d)(1) further that any extension of the Code or other applicable provision statute of limitations relating to payment of taxes for the taxable year of Executive with respect to which such contested amount is claim to be due is limited solely to such contested amount. Furthermore, the Company’s control of the Code but only contest shall be limited to the extent that such interest is paid issues with respect to Executive. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time which a Parachute 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)Payment would be payable hereunder and Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. 4.7.3. If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 4.7, Executive becomes entitled to receive any refund with respect to such claim, Executive shall make an additional gross-up payment in respect of such excess (plus any interest or penalties payable in respect of such excess) at promptly pay to the time that Company the amount of such excess refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to this Section 4.7, a determination is finally determinedmade that Executive shall not be entitled to any refund with respect to such claim and the Company does not notify Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 4.7.4. The Company All of the fees and expenses of the Accounting Firm in performing determinations referred to in subsections 4.7.1 and 4.7.2 above shall reimburse Executive for all reasonable fees, expenses, and costs related to determining be borne solely by the reasonableness of any Company position in connection with this paragraph,Company.