Common use of Gross-Up Payment Clause in Contracts

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

Gross-Up Payment. (ia) In Notwithstanding any provision in the Agreement to the contrary, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executiveyou, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the a “Severance PaymentsPayment”), would be subject to constitute an “excess parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986Code, as amended the Company shall pay you an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) such that the net amount retained by the Executive, you after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, employment FICA and Medicare withholding taxes and excise tax and Excise Tax imposed upon the payment provided by this subsectionGross-Up Payment, but before any federal, state or local income tax FICA and any interest and/or penalties assessed with respect to such Excise TaxMedicare withholding taxes on the Payment itself, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive unless you specify that other rates apply, you shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s your residence on the date your Date of the Terminating EventTermination, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection taxes (ii), shall be paid to the Executive within five (5) days calculated by assuming that any reduction under Section 68 of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty Code in the application amount of itemized deductions allocable to you applies first to reduce that amount of such state and local income taxes that would otherwise be deductible by you). (b) In the event that the excise tax imposed by Section 4999 of the Code is subsequently determined to be less than the amount taken into account hereunder at the time of your Termination, you shall repay to the initial determination by Company, at the Accounting Firm hereundertime that the amount of such reduction in excise tax is finally determined, it is possible that the portion of the Gross-Up Payments which will not have been made Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the excise tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by you to the Company should have been made (an “Underpayment”)extent that such repayment results in a reduction in excise tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant excise tax is determined to subsection exceed the amount taken into account hereunder at the time of your Termination (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Taxpayment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Accounting Firm Company shall determine make an additional Gross-Up Payment to you in respect to such excess (plus any interest, penalties or additions payable by you with respect to such excess) at the time that the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executiveexcess is finally determined. (iiic) The Executive shall notify Notwithstanding the Company foregoing, in writing the event you suffer any adverse tax consequences resulting from the previous inclusion of the payment received pursuant to Section 11(a) as ordinary income, and your inability to claim as a deduction the repayment of all or a portion of the Gross-Up Payment, you will be able to retain such amount of the Gross-Up Payment, as reasonably determined by the Accountants (as hereinafter defined) to compensate you for such adverse tax consequences. (d) Subject to any claim determination made by the Internal Revenue Service that, if successful, would require (the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii“IRS”), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive determinations as to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which whether a Gross-Up Payment would be payable hereunder is required and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required and the assumptions to be paidused in arriving at the determination shall be made by the Company’s independent certified public accountants, appointed prior to any change in ownership (as defined under Code §280G(b)(2)), and/or tax counsel selected by such accountants (the “Accountants”) in accordance with the principles of §280G of the Code. All fees and expenses of the Accountants will be borne by the Company. Subject to any determination made by the IRS, determinations of the Accountants under this Agreement with respect to (1) the initial amount of any Gross-Up Payment and (2) any subsequent adjustment of such payment shall be binding on the Company and you.

Gross-Up Payment. (ia) In Notwithstanding any provision in the Agreement to the contrary, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance Payments”a "Payment"), would be subject to constitute an "excess parachute payment" within the excise tax imposed by Section 4999 meaning of section 280G of the Internal Revenue Code of 1986Code, as amended the Company shall pay Executive an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, employment FICA and Medicare withholding taxes and excise tax and Excise Tax imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutivePayment. For purposes of determining the amount of the Gross-Up Payment, the unless Executive specifies that other rates apply, Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s 's residence on the date of the Terminating EventExecutive's termination date, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection taxes (ii), shall be paid to the Executive within five (5) days calculated by assuming that any reduction under section 68 of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty Code in the application amount of Section itemized deductions allocable to Executive applies first to reduce that amount of such state and local income taxes that would otherwise be deductible by Executive). (b) In the event that the excise tax imposed by section 4999 of the Code is subsequently determined to be less than the amount taken into account hereunder at the time of Executive's termination of employment, Executive shall repay to the initial determination by Company, at the Accounting Firm hereundertime that the amount of such reduction in excise tax is finally determined, it is possible that the portion of the Gross-Up Payments which will not have been made Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the excise tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by Executive to the Company should have been made (an “Underpayment”)extent that such repayment results in a reduction in excise tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant excise tax is determined to subsection exceed the amount taken into account hereunder at the time of Executive's termination of employment (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment to Executive in respect of to such claim and mayexcess (plus any interest, penalties or additions payable by Executive with respect to such excess) 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, time that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityfinally determined. (ivc) IfExcept as otherwise provided herein, after the receipt all determinations to be made under this Section 2.7 shall be made by the Executive of an amount advanced tax counsel selected by Executive, at the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject Company's expense and reasonably acceptable to the Company’s complying with the requirements of subsection . (iiid) above) promptly pay Notwithstanding anything in this Section 2.7 to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). Ifcontrary, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance no Gross Up payment shall be forgiven and shall not be required due at any time for any Payment to be repaid and the amount Executive resulting from termination of such advance shall offset, this Agreement due to the extent thereof, the amount of Gross-Up Payment required to be paidExecutive's death or disability.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with (A) the Company 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 Section 280G of the Code, then, the Company shall pay to the Executive such additional amounts (the “Severance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) 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 Severance PaymentsTotal Payments and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual 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 the Terminating Eventthis Section 5(e), net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for Executive receives a notice from the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Internal Revenue Service to the terms of this effect that the amounts payable under the Consulting and Non-Competition Agreement or otherwise (the “Severance Payments”), would be subject to (in whole or part)to the excise tax (the "Excise Tax") imposed by Section under section 4999 of the Internal Revenue Code Code, within thirty(30) days after the date the Chairman of 1986, as amended the Board receives a copy of such notice the Company shall pay to the Executive such additional amounts (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance PaymentsTotal Payments and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Taxis determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for Executive receives a notice from the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Internal Revenue Service to the terms of this effect that the amounts payable under the Agreement or otherwise (the “Severance Payments”), would be subject (in whole or part) to the excise tax (the "Excise Tax") imposed by Section under section 4999 of the Internal Revenue Code Code, within thirty (30) days after the date the Chairman of 1986, as amended the Board receives a copy of such notice the Company shall pay to the Executive such additional amounts (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance amounts paid to the Executive under this Agreement (the "Total Payments") and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of payments under this Agreement or otherwise (the “Severance Payments”), would any other agreement will be subject to the excise tax (the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), ) or any interest successor or penalties are incurred by similar provision, the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive Companies shall be entitled to receive pay Xx. Xxxxxxx an additional payment amount (a the “Gross-Up Payment”) such that the net amount retained by the Executive, Xx. Xxxxxxx after deduction of any Excise Tax on the Severance Paymentssuch payments (excluding payments pursuant to this Section 17), and after deduction for any Federalfederal, state, state and local income tax, employment tax and Excise Tax upon the payment provided for by this subsection, and any interest and/or penalties assessed with respect to such Excise TaxSection 17, shall be equal to the Severance Payments. amount of such payments (iiexcluding payments pursuant to this Section 17) Subject before payment of any Excise Tax (hereinafter the “Excise Tax Compensation Net Payment”). For purposes of determining whether any of such payments will be subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required Excise Tax and the amount of such Gross-Up PaymentExcise Tax, any payments or benefits received or to be received by Xx. Xxxxxxx in connection with a Change of Control or the termination of this Agreement shall be made by a nationally recognized accounting firm treated as “parachute payments” within the meaning of Section 280G of the Code, and all “excess parachute payments” within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days independent auditors of the Date of Termination, if applicable, Companies and acceptable to Xx. Xxxxxxx such payments or at such earlier time as is reasonably requested by the Company benefits do not constitute parachute payments or the Executiveexcess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Xx. Xxxxxxx shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s his residence on the date Date of the Terminating EventTermination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up PaymentIn the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the Date of Termination, if any, as determined pursuant to this subsection (ii), Xx. Xxxxxxx shall be paid repay to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code Companies, at the time that the amount of such reduction in Excise Tax is finally determined, an amount necessary so that the total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G(d)(4) of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”)Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection (iii) below and exceed the Executive thereafter is required to make a payment amount taken into account hereunder at the Date of any Excise TaxTermination, the Accounting Firm Companies shall determine the amount make an additional Gross-Up Payment in respect of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and excess (plus any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amountfinally determined. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a The Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as paid not later than the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, fifteenth day after the receipt by the Executive Date of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTermination.

Gross-Up Payment. (i) In the event If at any time or from time to time, it shall be determined by the Company’s independent auditors that any compensation, payment or distribution by the Company other benefit to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms Article II or Article IV of this Agreement or otherwise (the “Severance PaymentsPotential Parachute Payment”), would be ) is or will become subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest similar tax payable under any United States federal, state, local, foreign or penalties are incurred by the Executive with respect to such excise tax other law (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise TaxTaxes”), then the Executive shall Company shall, subject to Section 5.2, pay or cause to be entitled to receive an additional paid a tax gross-up payment (a “Gross-Up Payment”) such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to all such Excise Tax, shall be equal to Taxes and other Taxes on the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment. The Gross-Up Payment is required and shall be an amount equal to the product of (a) The amount of such the Excise Taxes (calculated at the effective marginal rates of all federal, state, local, foreign or other law), multiplied by (b) A fraction (the “Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting FirmMultiple”), the numerator or which shall provide detailed supporting calculations both is one (1.0), and the denominator of which is one (1.0) minus the lesser of (i) the sum, expressed as a decimal fraction, of the effective marginal rates of any Taxes and any Excise Taxes applicable to the Company and Gross-Up Payment or (ii) .80, it being intended that the Executive within fifteen Gross-Up Multiple shall in no event exceed five (15) business days 5.0). If different rates of the Date tax are applicable to various portions of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the a Gross-Up Payment, the weighted average of such rates shall be used. For purposes of this Section, Executive shall be deemed to pay Federal income taxes at be subject to the highest effective marginal rate of Federal income taxation applicable Taxes. The Gross-Up Payment is intended to individuals compensate Executive for all such Excise Taxes and any other Taxes payable by Executive with respect to the calendar year in which Gross-Up Payment. The Company shall pay or cause to be paid the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and of the amount calculation of such advance shall offsetamount, but in no event after the Executive makes payment to the extent thereof, the amount IRS of Gross-Up Payment required to be paidsuch Excise Taxes.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary or any termination of this Agreement notwithstanding, in the event it shall be determined that any compensation, payment or distribution or benefit received or to be received by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or any other payment or distribution or benefit made or provided by the Company or any of its Affiliates, to or for the benefit of Executive (whether pursuant to this Agreement or otherwise and determined without regard to whether any additional payments required under this Section 8) (the “Severance Payments”), a "Payment") would be subject to the excise tax imposed by Section 4999 of the United States Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise TaxTax imposed upon the Gross-Up Payment, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made any deductions actually disallowed under this subsection (ii), including whether Section 68 of the Code solely as a direct result of the inclusion of the Gross-Up Payment in the 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay Federal federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

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

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for Executive receives a notice from the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Internal Revenue Service to the terms of this effect that the amounts payable under the Consulting and Non-Competition Agreement or otherwise (the “Severance Payments”), would be subject (in whole or part) to the excise tax (the "Excise Tax") imposed by Section under section 4999 of the Internal Revenue Code Code, within thirty (30) days after the date the Chairman of 1986, as amended the Board receives a copy of such notice the Company shall pay to the Executive such additional amounts (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance PaymentsTotal Payments and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross- Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid Payment attributable to the Executive within five (5) days of Excise Tax and federal, state and local income tax imposed on the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance PaymentsPayment”), would be subject to constitute an “excess parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive paid an additional payment amount (a the “Gross-Up Payment”) such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, and employment tax and Excise Tax excise tax imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, Gross-Up Payment shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) on the date of on which the Terminating EventExecutive’s employment terminates, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. 4.7.1. The initial GrossAll determinations to be made under this Section 4.7 shall be made by a nationally-Up Payment, if any, as determined pursuant to this subsection recognized independent public accountant (iithe “Accounting Firm”), which firm shall be paid provide its determinations and any supporting calculations both to the Company and Executive within five thirty (530) days of each of a Change of Control and the receipt termination of the Accounting FirmExecutive’s determinationemployment. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by Within five (5) days after the Accounting Firm hereunderFirm’s determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made shall pay (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required or cause to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required paid) or distribute (or cause to be paid by the Executive in connection with the proceedings described in subsection (iiidistributed) below, shall be promptly paid by the Company to or for the benefit of the ExecutiveExecutive such amounts as are then due to Executive pursuant to this Section 4.7. (iii) The 4.7.2. Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of the Gross-up PaymentUp Payment (taking into account any amounts theretofore already paid by the Company). Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day 30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: : (Aa) give the Company any information reasonably requested request by the Company relating to such claim, ; (Bb) 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, ; (Cc) cooperate with the Company in good faith in order to effectively contest such claim, and ; and (Dd) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax excise tax, income tax or income employment tax, including interest and penalties penalties, with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this subsection (iii)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 the Executive to pay the tax claimed and xxx sxx 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; providedprovided further, however, that if the Company directs the Executive to pay such claim and xxx sxx for a refund, refund the Company shall advance the amount of such payment to the Executive Executive, on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax excise tax, income tax or income employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed claim to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues issue raised by the Internal Revenue Service or any other taxing authority. (iv) 4.7.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.7, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.7, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 4.7.4. 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 be borne solely by the Company.

Gross-Up Payment. (ia) In the event that it shall be determined that any compensationpayment, payment award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company Corporation (or any of its affiliated entities) or any entity which effectuates a Change in Control (or any of its affiliated entities) to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 17.4) (the “Severance "Payments”), ") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Corporation shall pay to Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax Tax) imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by Executive retains an amount of the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both Gross-Up Payment equal to the Company 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 Executive within fifteen (15) business days highest applicable marginal rate of federal income taxation for the Date of Termination, if applicable, or at such earlier time as calendar year in which the Gross-up Payment is reasonably requested by the Company or the Executiveto be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay Federal federal income taxes at the highest marginal rate rates of Federal federal income taxation applicable to individuals for the calendar year in which the Gross-Up up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxestaxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-up Payment in the Executive's adjusted gross income. The initial Notwithstanding the foregoing provisions of this Section 17.4, if it shall be determined that Executive is entitled to a Gross-Up Payment, but that the Payments would not be subject to the Excise Tax if anythe Payments were reduced by an amount that is less than 10 percent of the portion of the Payments that would be treated as "parachute payments" under Section 280G of the Code, as determined then the amounts payable to Executive under this Agreement shall be reduced (but not below zero) to the maximum amount that could be paid to Executive without giving rise to the Excise Tax (the "Safe Harbor Cap"), and no Gross-Up Payment shall be made to Executive. The reduction of the amounts payable hereunder, if applicable, shall be made by reducing first the payments under Sections 16.1 and 17.2, unless an alternative method of reduction is elected by Executive. For purposes of reducing the Payments to the Safe Harbor Cap, only amounts payable under this Agreement (and no other Payments) shall be reduced. If the reduction of the amounts payable hereunder would not result in a reduction of the Payments to the Safe Harbor Cap, no amounts payable under this Agreement shall be reduced pursuant to this subsection provision. (iib) Subject to the provisions of Section 17.4(a), all determinations required to be made under this Section 17.4, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment, the reduction of the Payments to the Safe Harbor Cap and the assumptions to be utilized in arriving at such determinations, shall be paid made by the public accounting firm that is retained by the Corporation as of the date immediately prior to the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations both to the Corporation and Executive within five fifteen (515) business days of the receipt of notice from the Corporation or the Executive that there has been a Payment, or such earlier time as is requested by the Corporation (collectively, the "Determination"). In the event that the Accounting Firm’s determinationFirm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). Any determination All fees and expenses of the Accounting Firm shall be borne solely by the Corporation and the Corporation shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment under this Section 17.4 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no 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 Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. In the event the Accounting Firm determines that the Payments shall be reduced to the Safe Harbor Cap, it shall furnish Executive with a written opinion to such effect. (c) The Determination by the Accounting Firm shall be binding upon the Company Corporation and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company Corporation should have been made (an “"Underpayment”") or Gross-up Payments are made by the Corporation which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company Corporation to or for the benefit of Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Executive. (iii) The Corporation. Executive shall notify cooperate, to the Company extent his expenses are reimbursed by the Corporation, with any reasonable requests by the Corporation in writing of connection with any claim by contests or disputes with the Internal Revenue Service that, if successful, would require in connection with the payment by Excise Tax. (d) The obligations contained in this Section 17.4 shall survive the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the termination or expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate Executive's employment 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 Corporation and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityfully enforceable thereafter. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to Executive in connection with a Change-in-Control or for the benefit termination of the Executive’s employment, whether paid such payments or payable or distributed or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, with any other person whose actions result in a Change-in-Control or with any person affiliated with the Company or such other persons (the all such payments and benefits being hereinafter called “Severance Total Payments”), would be subject (in whole or part), to the excise tax (the “Excise Tax”) imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall pay to the Executive such additional amounts (the “Gross-Up Payment”) as may be necessary to place the Executive in the same after-tax position (taking into account the fact that the Gross-Up Payment itself is or may be subject to federal, state and local income, employment and excise taxes) as if no portion of the Total Payments had been subject to the Excise Tax. The amount of the Gross-Up Payment shall be calculated at the Company’s expense using the highest marginal tax rates, and shall be calculated by a “Big Four” accounting firm or nationally-recognized benefits consulting firm selected by the Company and reasonably acceptable to the Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income, employment and excise 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 and local income, employment and excise tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any interest payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties are incurred or additions payable by the Executive with respect to such excise tax excess) at the time that the amount of such excess is finally determined. The Executive (such excise taxwho shall immediately notify the Company of the commencement of any audit, together administrative or judicial proceedings) and the Company shall each reasonably cooperate with the other in connection with any such interest and penalties, are hereinafter collectively referred to as administrative or judicial proceedings concerning the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) such that the net existence or amount retained by the Executive, after deduction of any liability for Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to the Total Payments. The Executive will allow and hereby authorizes the Company to control any such Excise Taxaudit, shall be equal to administrative or judicial proceedings on the Severance PaymentsExecutive’s behalf. (ii) Subject Notwithstanding any provision of this Agreement to the provisions contrary, if but for this sentence, the Company would be obligated to make “parachute payments” to the Executive, whether under this Agreement, the terms of subsection any stock-based compensation award or any other agreement, contract or arrangement, but the aggregate “present value” of all such parachute payments does not exceed the lesser of (iiii) below, all determinations required (x) 1.10 multiplied by (y) three (3) times the Executive’s “base amount,” or (ii) $250,000 plus three (3) times the Executive’s “base amount,” then the payments and benefits to be made paid or provided under this subsection Agreement will be reduced to the minimum extent necessary (iibut in no event less than zero) so that no portion of the total payments or benefits due to the Executive on account of a Change-in-Control of the Company, determined after the reduction under this Agreement, constitutes an “excess parachute payment.” For purposes of this Section 13(B)(ii), including the terms “Change-in-Control,” “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether a Gross-Up Payment any reduction in such payments or benefits to be provided under this Agreement is required and pursuant to the amount preceding sentence will be made, if requested by the Executive or the Company, at the expense of such Gross-Up Payment, shall be made the Company by a nationally “Big Four” accounting firm or nationally-recognized accounting benefits consulting firm selected by the Company (and reasonably acceptable to the “Accounting Firm”Executive. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(B)(ii) will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 13(B)(ii), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen will be entitled to designate the payments and/or benefits to be so reduced (15whether under this Agreement or otherwise) business days of in order to give effect to this Section 13(B)(ii). The Company will provide the Date of Termination, if applicable, or at such earlier time as is Executive with all information reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, Executive to permit the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of make such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”)designation. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required fails to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than designation within ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature date of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest may effect such claim, and (D) permit the Company to participate reduction in any proceedings relating to such claim; providedmanner it deems appropriate. If, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred despite a reduction in connection payments and/or benefits in accordance with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iiiSection 13(B)(ii), the Company shall control all proceedings taken in connection with such contest andExecutive is required to pay an Excise Tax, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which paid a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contestin accordance with Section 13(B)(i), as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive but shall not be entitled to any refund with respect additional amounts relating to such claim and reduction in payments and/or benefits, notwithstanding the Company does not notify failure of the Executive in writing reduction to achieve the goal 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 paidavoiding an Excise Tax liability.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment award, benefit or distribution by the Company (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of Executive provided under this Agreement or otherwise (the “Severance Payments”) would be subject to a twenty percent addition to taxation under Section 409A (“409A Tax”) or any interest or penalties are incurred by Executive with respect to such 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 409A Taxes imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the 409A Taxes, interest, and penalties 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 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, Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. (ii) 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 MergerSub merged with and into the Company (the “Transaction”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax Tax) imposed upon the payment provided by this subsectionGross-Up Payment, and any interest and/or penalties assessed with respect to such Excise Tax, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay Federal federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and (B) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial 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, if anyPayment in Executive’s adjusted gross income. (iii) Subject to the provisions of Section 9(i) and 9(ii), as determined pursuant applicable, all determinations required to be made under this subsection (ii)Section 9, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be paid 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 five fifteen (515) business days of the receipt of notice from the Accounting Firm’s determinationCompany or Executive that there has been a Payment, or such earlier time as is requested by the Company or Executive (collectively, the “Determination”). Any determination by All fees and expenses of the Accounting Firm shall be binding upon 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 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of Executive. In the Executive. event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) The of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contest or disputes with the Internal Revenue Service that, if successful, would require in connection with the payment by the Company of Excise Tax. (v) Executive expressly acknowledges and agrees that the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10Up Payment in Paragraph 9(ii) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested limited exclusively to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon Excise Tax that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action come due in connection with contesting such claim as Payments to or for the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the benefit of Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible mannerTransaction, and the that Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall will not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidPayments 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 compensation, payment or distribution ---------------- benefit received or to be received by the Company to Executive in connection with a Change in Control or for the benefit termination of the Executive's employment, whether paid such payments or payable or distributed or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (the “Severance all such payments and benefits being hereinafter called "Total Payments”"), would be subject (in whole or part), to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Total Payments had been subject to the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax =========================================================================== deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any interest payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties are incurred or additions payable by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as excess) at the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) such time that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by excess is finally determined. The Executive and the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is each reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent cooperate with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive other in connection with any administrative or judicial proceedings concerning the proceedings described in subsection (iii) below, shall be promptly paid by the Company to existence or amount of liability for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes Excise Tax with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityTotal Payments. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or ----------------- to be received by the Company to Executive in connection with a Change in Control or for the benefit termination of the Executive's employment, whether paid such payments or payable or distributed or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (the “Severance all such payments and benefits being hereinafter called "Total Payments”"), would be subject (in whole or part), to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), the Company shall pay to the Executive such additional amounts (the "Gross-Up Payment") as may be necessary to place the Executive in the same after-tax position as if no portion of the Total Payments had been subject to the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any interest payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties are incurred or additions payable by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as excess) at the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) such time that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as excess is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.finally

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

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Executive in connection with a Change in Control of the Company to or for the benefit termination of the Executive's employment, whether paid such payments or payable or distributed or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control of the Company or any person affiliated with the Company or such person (the “Severance all such payments and benefits being hereinafter called "Total Payments”"), would be subject (in whole or part), to the excise tax (the "Excise Tax") imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”"), or any interest or penalties are incurred by the Company shall pay to the Executive with respect to such excise tax additional amounts (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such as may be necessary to place the Executive in the same after-tax position as if no portion of the Total Payments had been subject to the Excise Tax. In the event that the net amount retained by the Executive, after deduction of any Excise Tax on is subsequently determined to be less than the Severance Paymentsamount taken into account hereunder, any Federalthe Executive shall repay to the Company, state, and local income tax, employment tax and at the time that the amount of such reduction in Excise Tax upon is finally determined, the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to portion of the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required 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 Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by repayment at the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15rate provided in Section 1274(b)(2)(B) business days of the Date of Termination, if applicable, or at such earlier time as Code. In the event that the Excise Tax is reasonably requested by the Company or the Executive. For purposes of determining determined to exceed the amount taken into account hereunder (including by reason of any payment the existence of which cannot be determined at the time of the Gross-Up Payment, the Executive Company shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the make an additional Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and mayexcess (plus any interest, at its sole option, either direct penalties or additions payable by the Executive to pay with respect of such excess) at 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, time that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to excess if finally determined. The Executive and the Executive on an interest-free basis (to Company shall each reasonably cooperate with the extent not prohibited by applicable law) and shall indemnify and hold other in connection with any administrative or judicial proceedings concerning the Executive harmless, on an after-tax basis, from any existence or amount of liability for Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityTotal Payments. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that Notwithstanding any compensationother provision of this Agreement, if any portion of any payment under this Agreement, or distribution by under any other agreement with or plan of the Company to or for any of its Affiliates (in the benefit of aggregate, the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance "Total Payments”"), would be subject to constitute an "excess parachute payment," the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended Company shall pay Executive an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, Executive after deduction of any Excise Tax excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Severance Total Payments, and any Federalfederal, state, state and local income tax, employment tax, and excise tax and Excise Tax upon the payment provided for by this subsection, and any interest and/or penalties assessed with respect to such Excise TaxSection 9(c), shall be equal to the Severance Total Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s residence 's domicile for income tax purposes on the date of the Terminating EventGross-Up Payment is made, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. (ii) For purposes of this Agreement, the terms "excess parachute payment" and "parachute payments" shall have the meanings assigned to them in Section 280G of the Code and such "parachute payments" shall be valued as provided therein. The initial Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company's expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel ("National Tax Counsel") selected by the Company's independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income, (ii) the amount and present value of Total Payments, (iii) the amount and present value of any excess parachute payments, and (iv) the amount of any Gross-Up Payment. As used in this Agreement, if anythe term "Base Period Income" means an amount equal to the Executive's "annualized includible compensation for the base period" as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, as the value of any noncash benefits or any deferred payment or benefit shall be determined pursuant to this subsection by the Company's independent auditors in accordance with the principles of Section 280G(d)(3) and (ii4) of the Code (or any successor provisions), which determination shall be paid evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm and shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any If such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive National Tax Counsel so requests in connection with the proceedings described in subsection opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company's expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (iii5) below, shall be promptly paid days after the National Tax Counsel's opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of the ExecutiveExecutive such amounts as are then due to Executive under this Agreement. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that If any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant payments made to the terms of Executive under this Agreement or otherwise Section 3.B (the “Severance Payments”), would "payments") will be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") the ("Excise Tax"), (and/or any similar tax that may be imposed by federal, state or any interest or penalties are incurred by local law), Company shall pay to the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment amount (a “Grossthe "gross-Up Payment”up payment") such that equal to the net amount retained by sum of (x) the Executive, after deduction of any Excise Tax imposed on the Severance Paymentspayments, any Federal(y) the Excise Tax imposed on the gross-up payment, stateand (z) the federal, state and local income tax, employment tax and taxes imposed upon the gross-up payment. The gross-up payment shall be made within 45 days after the date of termination. For purposes of determining whether any of the payments will be subject to the Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up PaymentExcise Tax, shall any other payments or benefits received or to be made by a nationally recognized accounting firm selected received by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company in connection with a Change in Control or the Executive's termination (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, any person whose actions result in a Change in Control or any person affiliated with Company or such person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Company and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, or are otherwise not subject to the Excise Tax. For purposes of determining the amount of the Grossgross-Up Paymentup payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be madefederal, and state and local income taxes at the highest marginal rates rate of individual federal, state and local income taxation in the calendar year in which the gross-up payment is to be made in the state and locality of the Executive’s 's residence on the date of the Terminating Eventtermination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such any state and local income taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant Excise Tax is subsequently determined to subsection (iii) below and be less than the amount used to calculate the gross-up payment, the Executive thereafter shall repay to Company at the time that the reduction in Excise Tax is required finally determined the portion of the gross-up payment attributable to make a payment of any Excise Taxsuch reduction, the Accounting Firm shall determine plus interest on the amount of such repayment at the Underpayment rate provided in Section 7872(f)(2) of the Code. In the event that has occurredthe Excise Tax is determined to exceed the amount used to calculate the gross-up payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the gross-up payment), consistent with the calculations required to be made hereunder, and any Company shall make an additional gross-up payment in respect of such Underpayment, and excess (plus any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityfinally determined. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance PaymentsPayment”), would be subject to constitute an “excess parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive paid an additional payment amount (a the “Gross-Up Payment”) such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, and employment tax and Excise Tax excise tax imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, Gross-Up Payment shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) on the date of on which the Terminating EventExecutive’s employment terminates, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. 4.7.1. The initial GrossAll determinations to be made under this Section 4.7 shall be made by a nationally-Up Payment, if any, as determined pursuant to this subsection recognized independent public accountant (iithe “Accounting Firm”), which firm shall be paid provide its determinations and any supporting calculations both to the Company and Executive within five thirty (530) days of each of a Change of Control and the receipt termination of the Accounting FirmExecutive’s determinationemployment. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by Within five (5) days after the Accounting Firm hereunderFirm’s determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made shall pay (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required or cause to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required paid) or distribute (or cause to be paid by the Executive in connection with the proceedings described in subsection (iiidistributed) below, shall be promptly paid by the Company to or for the benefit of the ExecutiveExecutive such amounts as are then due to Executive pursuant to this Section 4.7. (iii) The 4.7.2. Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of the Gross-up PaymentUp Payment (taking into account any amounts theretofore already paid by the Company). Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day 30) day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: : (Aa) give the Company any information reasonably requested request by the Company relating to such claim, ; (Bb) 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, ; (Cc) cooperate with the Company in good faith in order to effectively contest such claim, and ; and (Dd) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax excise tax, income tax or income employment tax, including interest and penalties penalties, with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this subsection (iii)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 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; providedprovided further, however, that if the Company directs the Executive to pay such claim and xxx for a refund, refund the Company shall advance the amount of such payment to the Executive Executive, on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax excise tax, income tax or income employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed claim to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues issue raised by the Internal Revenue Service or any other taxing authority. (iv) 4.7.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.7, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.7, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid. 4.7.4. 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 be borne solely by the Company.

Gross-Up Payment. (ia) In Notwithstanding any provision in the Agreement to the contrary, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance Payments”a "Payment"), would be subject to constitute an "excess parachute payment" within the excise tax imposed by Section 4999 meaning of section 280G of the Internal Revenue Code of 1986Code, as amended the Company shall pay Executive an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, employment FICA and Medicare withholding taxes and excise tax and Excise Tax imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutivePayment. For purposes of determining the amount of the Gross-Up Payment, the unless Executive specifies that other rates apply, Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s 's residence on the date of the Terminating EventExecutive's termination date, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection taxes (ii), shall be paid to the Executive within five (5) days calculated by assuming that any reduction under section 68 of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty Code in the application amount of Section itemized deductions allocable to Executive applies first to reduce that amount of such state and local income taxes that would otherwise be deductible by Executive). (b) In the event that the excise tax imposed by section 4999 of the Code is subsequently determined to be less than the amount taken into account hereunder at the time of Executive's termination of employment, Executive shall repay to the initial determination by Company, at the Accounting Firm hereundertime that the amount of such reduction in excise tax is finally determined, it is possible that the portion of the Gross-Up Payments which will not have been made Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the excise tax, federal, state and local income taxes and FICA and Medicare withholding taxes imposed on the Gross-Up Payment being repaid by Executive to the Company should have been made (an “Underpayment”)extent that such repayment results in a reduction in excise tax, FICA and Medicare withholding taxes and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant excise tax is determined to subsection exceed the amount taken into account hereunder at the time of Executive's termination of employment (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment to Executive in respect of to such claim and mayexcess (plus any interest, penalties or additions payable by Executive with respect to such excess) 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, time that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityfinally determined. (ivc) IfExcept as otherwise provided herein, after the receipt all determinations to be made under this Section 2.7 shall be made by the Executive of an amount advanced tax counsel selected by Executive, at the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject Company's expense and reasonably acceptable to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment award, benefit or distribution (or any acceleration of any payment, award, benefit or distribution) by the Company Employer (or any of its affiliated entities) or any entity which effectuates a Change in Control to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise otherwise, but determined without regard to any additional payments required under this Section 7(l)) (the “Severance Payments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Employer shall pay to the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be but excluding any tax, penalty or interest imposed under Section 409A of the Code) imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a any deductions disallowed because of the inclusion of the Gross-Up Payment in the 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay Federal federal income taxes at the highest marginal rate rates of Federal federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and (ii) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial taxes and (iii) 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, if any, as determined pursuant to this subsection Payment in the Executive’s adjusted gross income. (ii) Subject to the provisions of Section 7(l)(i), all determinations required to be made under this Section 7(l), including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be paid made by the public accounting firm that is retained by the Employer as of the date immediately prior to the Change in Control (the “Accounting Firm”) which shall provide detailed supporting calculations both to the Employer and the Executive within five fifteen (515) business days of the receipt of notice from the Employer or the Executive that there has been a Payment, or such earlier time as is requested by the Employer (collectively, the “Determination”). In the event that the Accounting Firm’s determinationFirm is serving as accountant or auditor for the individual, entity or group effecting the Change in Control, the Employer and the Executive shall jointly appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). Any determination All fees and expenses of the Accounting Firm shall be borne solely by the Employer and the Employer shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 7(l) with respect to any Payments shall be made no later than thirty (30) days following such Payment. The Determination by the Accounting Firm shall be binding upon the Company Employer and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company Employer should have been made (an “Underpayment”) or Gross-Up Payments are made by the Employer which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company Employer to or for the benefit of the Executive. Executive but in no event later than the date specified in Section 13. In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2)(B) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Employer. The Executive shall notify cooperate, to the Company extent his expenses are reimbursed by the Employer, with any reasonable requests by the Employer in writing of connection with any claim by contests or disputes with the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityTax. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether ether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (the “Severance PaymentsPayment”), would be subject to constitute an “excess parachute payment” within the excise tax imposed by meaning of Section 4999 280G of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive paid an additional payment amount (a the “Gross-Up Payment”) such that the net amount retained by the Executive, Executive after deduction of any Excise Tax on excise tax imposed under Section 4999 of the Severance PaymentsCode, and any Federalfederal, state, state and local income tax, and employment tax and Excise Tax excise tax imposed upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, Gross-Up Payment shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income tax and employment taxes at the highest marginal rate of Federal federal income and employment taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of Executive’s residence (or, if greater, the state and locality in which Executive is required to file a nonresident income tax return with respect to the Payment) on the date of the Terminating Eventon which Executive’s employment terminates, net of the maximum reduction in Federal federal income taxes which could that may be obtained from the deduction of such state and local taxes. 4.6.1. The initial GrossAll determinations to be made under this Section 4.6 shall be made by a nationally-Up Payment, if any, as determined pursuant to this subsection recognized independent public accountant (iithe “Accounting Firm”), which firm shall be paid provide its determinations and any supporting calculations both to the Company and Executive within five (5) 30 days of each of a Xxxxx of Control and the receipt termination of the Accounting FirmExecutive’s determinationemployment. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result Six months and one day after the termination of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderExecutive’s employment, it is possible that Gross-Up Payments which will not have been made by the Company should have been made shall pay (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required or cause to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required paid) or distribute (or cause to be paid by the Executive in connection with the proceedings described in subsection (iiidistributed) below, shall be promptly paid by the Company to or for the benefit of the ExecutiveExecutive such amounts as are due to Executive pursuant to this Section 4.6. (iii) The 4.6.2. Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of the Gross-up PaymentUp Payment (taking into account any amounts theretofore already paid by the Company). Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day 30-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: : (Aa) give the Company any information reasonably requested request by the Company relating to such claim, ; (Bb) 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 I selected by the Company, ; (Cc) cooperate with the Company in good faith in order to effectively contest such claim, and ; and (Dd) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an a after-tax basis, for any Excise Tax excise tax, income tax or income employment tax, including interest and penalties penalties, with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on limiting the foregoing provisions of this subsection (iii)Section 4.6.2, the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct 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; providedprovided further, however, that if the Company directs the Executive to pay such claim and xxx for a refund, refund the Company shall advance the amount of such payment to the Executive Executive, on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax excise tax, income tax or income employment tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and provided further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed claim to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues issue raised by the Internal Revenue Service or any other taxing authority. (iv) 4.6.3. If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.6, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) abovethis Section 4.6, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) 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. 4.6.4. All of the fees and expenses of the Accounting Firm in performing determinations referred to in subsections 4.6.1 and 4.6.2 above shall be borne solely by the Company.

Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment award, benefit or distribution by the Company (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise Executive (the “Severance Payments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax Tax) imposed upon the payment provided by this subsectionGross-Up Payment, and any interest and/or penalties assessed with respect to such Excise Tax, shall be the Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a any deductions disallowed because of the inclusion of the Gross-Up Payment in the 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay Federal federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and (B) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial 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 PaymentPayment in the Executive’s adjusted gross income. (b) Subject to the provisions of Section 9(a), if anyall determinations required to be made under this Section 9, as determined pursuant including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to this subsection (ii)be utilized in arriving at such determinations, shall be paid 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 the Executive within five (5) 15 business days of the receipt of notice from the Accounting Firm’s determinationCompany or the Executive that there has been a Payment, or such earlier time as is requested by the Company or the Executive (collectively, the “Determination”). Any determination by All fees and expenses of the Accounting Firm shall be binding upon borne solely by the Company, and the Company and 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 the Executive shall be made to the relevant tax authorities no later than the date on which the Excise Tax on such Payments is due to the relevant tax authorities, provided, however, that notwithstanding anything herein to the contrary, in no event shall any Gross-Up Payment or any payment of any income or other taxes to be paid by the Company under this Section 9 be made later than the end of the Executive’s taxable year next following the Executive’s taxable year in which the Executive remits the related taxes. Any costs and expenses incurred by the Company on behalf of the Executive under this Section 9 due to any tax contest, audit or litigation will be paid by the Company no later than the end of the Executive’s taxable year following the Executive’s taxable year in which the taxes that are the subject of the tax contest, audit or litigation are remitted to the taxing authority, or where as a result of such tax contest, audit or litigation no taxes are remitted, the end of the Executive’s taxable year following the Executive’s taxable year in which the audit is completed or there is a final and non-appealable settlement or other resolution of the contest or litigation. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty. (c) 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 hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of the Executive. . In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contest or disputes with the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, Excise Tax. (Cd) cooperate with the Company in good faith in order to effectively contest such claim, The parties hereto expressly acknowledge and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, agree that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited eligible to issues with respect to which receive a Gross-Up Payment would be payable hereunder with regard to payments and benefits received in connection with the Executive shall be entitled to settle or contest, as the case may be, Merger and/or any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive Change of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject Control occurring subsequent to the Company’s complying with Merger during the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidEmployment Period.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment award, benefit or distribution by the Company (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of Executive provided under this Agreement or otherwise (the “Severance Payments”) would be subject to a twenty percent additional tax under Section 409A or any interest or penalties are incurred by Executive with respect to such additional tax (such additional tax, together with any such interest and penalties, are hereinafter collectively referred to as the “409A 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 409A Taxes) imposed upon the Gross-Up Payment, Executive retains an amount of the Gross-Up Payment equal to the sum of (x) the 409A Taxes, 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 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, Executive shall be deemed to (A) pay federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, (B) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (C) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in Executive’s adjusted gross income. (ii) 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 of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax Tax) imposed upon the payment provided by this subsectionGross-Up Payment, and any interest and/or penalties assessed with respect to such Excise Tax, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay Federal federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and (B) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial 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, if anyPayment in Executive’s adjusted gross income. (iii) Subject to the provisions of Section 9(i) and 9(ii), as determined pursuant applicable, all determinations required to be made under this subsection (ii)Section 9, including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be paid 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 five fifteen (515) business days of the receipt of notice from the Accounting Firm’s determinationCompany or Executive that there has been a Payment, or such earlier time as is requested by the Company or Executive (collectively, the “Determination”). Any determination by All fees and expenses of the Accounting Firm shall be binding upon 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 initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, 409A Tax, or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of Executive. In the Executive. event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse Executive for his Excise Tax or 409A Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) The 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. Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contest or disputes with the Internal Revenue Service that, if successful, would require in connection with the payment by the Company of Excise Tax or 409A Tax. (v) Executive expressly acknowledges and agrees that the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10Up Payment in Paragraph 9(ii) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested limited exclusively to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon Excise Tax that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action come due in connection with contesting such claim as Payments to or for the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the benefit of Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible mannerTransaction, and the that Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall will not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidPayments as a result of any change of control that may occur following the Effective Date.

Gross-Up Payment. (ia) In Notwithstanding the event it shall be determined that above, if any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or compensation payable or distributed or distributable pursuant to the terms upon termination of this Agreement or otherwise Employee’s employment as provided for above (the “Severance Payments”)) triggers the application of Internal Revenue Code Section 280G, would be subject to or makes Employee liable for payment of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)) provided for under Section 4999 of the Code, or any other statute or regulation under which Employee may be penalized as a result of the nature or amount of such compensation, then Employer or the Executive acquiring or successor entity of Employer shall be entitled pay to receive Employee an additional payment amount (a the “Gross-Up PaymentUp”) such that the net after-tax amount retained by the ExecutiveEmployee, after deduction of (X) any Excise Tax on the Severance Payments, and (Y) any Federalfederal, state, and local income taxor foreign income, employment or other tax and Excise Tax upon the any payment provided for by this subsection, and any interest and/or penalties assessed with respect to such Excise TaxSection, shall be equal to the Severance Payments. (ii) Subject , reduced by the amount of any United States federal, state and local income or employment tax liability of the Employee calculated as if the Payments were not subject to the provisions Excise Tax. The determination of subsection (iii) below, all determinations required whether any of the Payments will be subject to be made under this subsection (ii), including whether a Gross-Up Payment is required the Excise Tax and the amount of such Gross-Up Payment, shall Excise Tax will be made by a nationally recognized Employer’s regular independent public accounting firm selected by firm. (b) In the Company (event that the “Accounting Firm”)Excise Tax is subsequently determined to be less than the amount taken into account under this Section , which Employee shall provide detailed supporting calculations both repay to Employer at the time that the amount of such reduction of Excise Tax is finally determined, an amount equal to the Company and the Executive within fifteen (15) business days sum of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining following: (i) the amount of the Gross-Up Paymentreduction of the Excise Tax, (ii) the Executive shall be deemed to pay Federal income amount of the reduction in all other taxes generated by the reduction in the Excise Tax, and (iii) interest on the amount of the sum of (i) and (ii) at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year provided in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date Section 1274(b)(2)(B) of the Terminating Event, net Code. (c) In the event that the Excise Tax is determined to exceed the amount previously taken into account under the Section (including by reason of any payment the maximum reduction in Federal income taxes existence or amount of which could cannot be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderGross-Up), it is possible that Employer shall make an additional Gross-Up Payments which will not have been made by the Company should have been made payment in respect to such excess (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and plus any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying finally determined in accordance with the requirements of subsection (iii) principles set forth above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment distribution or distribution acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive, Executive (whether paid or payable or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise otherwise) (the “Severance Payments”), a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such Excise Taxtaxes) imposed upon the Gross-Up Payment, shall be the Executive retains an amount equal to the Severance Paymentssum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement. (iib) Subject to the provisions of subsection (iii) belowSection 3(a), all determinations required to be made under this subsection (ii)Section 3, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company Xxxxxx Consulting Inc. (the “"Accounting Firm”), ") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date receipt of Termination, if applicablenotice from the Company or the Executive that there has been a Payment, or at such earlier time as is reasonably requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as a consultant for the individual, entity or group effecting the Executive. For purposes of determining the amount of the Gross-Up PaymentChange in Control, the Executive may appoint a nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be deemed to pay Federal income taxes at borne solely by the highest marginal rate Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of Federal income taxation applicable to individuals for the calendar year in which the Gross-services hereunder. The Gross- Up Payment is under this Section 3 with respect to any Payments shall be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on made no later than thirty (30) days following the date of such Payment. If the Terminating EventAccounting Firm determines that no Excise Tax is payable by the Executive, net of it shall furnish the maximum reduction in Federal income taxes which could be obtained from deduction of Executive with a written opinion to such state effect, and local taxes. The initial Gross-Up Paymentto the effect that failure to report the Excise Tax, if any, as determined pursuant to this subsection (ii), shall be paid to on the Executive within five (5) days Executive's applicable federal income tax return will not result in the imposition of the receipt of the Accounting Firm’s determinationa negligence or similar penalty. Any determination The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “"Underpayment”") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of the Executive. . In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive to or for the benefit of the Company. The Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contests or disputes with the Internal Revenue Service thatin connection with the Excise Tax. (c) Notwithstanding Section 6 hereof, if successful, would require this Section 3 shall survive the payment termination of this Agreement unless the Executive's employment was terminated by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityCause. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for Executive receives a notice from the benefit of the Executive, whether paid or payable or distributed or distributable pursuant Internal Revenue Service to the terms of this effect that the amounts payable under the Consulting and Non-Competition Agreement or otherwise (the “Severance Payments”), would be subject to (in whole or part)to the excise tax (the "Excise Tax") imposed by Section under section 4999 of the Internal Revenue Code Code, within thirty(30) days after the date the Chairman of 1986, as amended the Board receives a copy of such notice the Company shall pay to the Executive such additional amounts (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Severance PaymentsTotal Payments and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross- Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid Payment attributable to the Executive within five (5) days of Excise Tax and federal, state and local income tax imposed on the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Taxis determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 5(e)) whose actions result in a "change in control" (for purposes of Section 280G of the Internal Revenue Code (the “Severance "Code")) or (C) any Person affiliated with the Company 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 of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxcollectively, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”")), then then, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including any Excise Tax, shall be equal to imposed on the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (Executive retains an amount of the “Accounting Firm”), which shall provide detailed supporting calculations both Gross-Up Payment equal to the Company and Excise Tax imposed upon the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutivePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested excess) at the time that the amount is claimed to be due is limited solely to of such contested amountexcess if finally determined. Furthermore, The Executive and the Company’s control Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of the contest shall be limited to issues liability for Excise Tax with respect to which a the Payments. It is understood that the application of this Section 6 and Section 280G may have differing interpretations; however, the parties intend that the Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject determined in a manner that is most favorable to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidExecutive.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or 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 “Severance Code”)) or (C) any Person affiliated with the Company 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 are incurred by the Executive with respect to such excise tax taxes (such excise taxcollectively, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”)), then then, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including any Excise Tax, shall be equal to imposed on the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (Executive retains an amount of the “Accounting Firm”), which shall provide detailed supporting calculations both Gross-Up Payment equal to the Company and Excise Tax imposed upon the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutivePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual 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 the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested excess) at the time that the amount is claimed to be due is limited solely to of such contested amountexcess if finally determined. Furthermore, The Executive and the Company’s control Company shall each reasonably cooperate with the other in connection with any administrative or judicial proceedings concerning the existence or amount of the contest shall be limited to issues liability for Excise Tax with respect to which a the Payments. It is understood that the application of this Section 6 and Sections 280G and 409A may have differing interpretations; however, the parties intend that the Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject determined in a manner that is most favorable to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidExecutive.

Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment award, benefit or distribution by the Company (or any acceleration of any payment, award, benefit or distribution) to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise Executive (the “Severance Payments”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Company shall pay to the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of all taxes (including any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax Tax) imposed upon the payment provided by this subsectionGross-Up Payment, and any interest and/or penalties assessed with respect to such Excise Tax, shall be the Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a any deductions disallowed because of the inclusion of the Gross-Up Payment in the 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (A) pay Federal federal income taxes at the highest marginal rates of federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and (B) pay applicable state and local income taxes at the highest marginal rates rate of individual taxation for the calendar year in which the state and locality of Executive’s residence on the date of the Terminating EventGross-Up Payment is to be made, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial 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 PaymentPayment in the Executive’s adjusted gross income. (b) Subject to the provisions of Section 9(a), if anyall determinations required to be made under this Section 9, as determined pursuant including whether and when a Gross-Up Payment is required, the amount of such Gross-Up Payment and the assumptions to this subsection (ii)be utilized in arriving at such determinations, shall be paid 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 the Executive within five (5) 15 business days of the receipt of notice from the Accounting Firm’s determinationCompany or the Executive that there has been a Payment, or such earlier time as is requested by the Company or the Executive (collectively, the “Determination”). Any determination by All fees and expenses of the Accounting Firm shall be binding upon borne solely by the Company, and the Company and 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 the Executive shall be made to the relevant tax authorities no later than the date on which the Excise Tax on such Payments is due to the relevant tax authorities. If the Accounting Firm determines that no Excise Tax is payable by the Executive. , it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive’s applicable federal income tax return should not result in the imposition of a negligence or similar penalty. (c) 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 hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”) or Gross-Up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of the Executive. . In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contest or disputes with the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, Excise Tax. (Cd) cooperate with the Company in good faith in order to effectively contest such claim, The Executive expressly acknowledges and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, agrees that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder is limited exclusively to Excise Tax that may come due in connection with Payments to or for the benefit of the Executive, and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall will not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidPayments as a result of any Change of Control that may occur following the Effective Date.

Gross-Up Payment. (ia) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensationpayment, payment distribution or distribution acceleration of vesting of any award or benefit by the Company or its Subsidiaries to or for the benefit of the Executive, Executive (whether paid or payable or payable, distributed or distributable or accelerated or subject to acceleration pursuant to the terms of this Agreement or otherwise otherwise) (the “Severance Payments”), a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such Excise Taxtaxes) imposed upon the Gross-Up Payment, shall be the Executive retains an amount equal to the Severance Paymentssum of (i) the Excise Tax imposed upon the Payments and (ii) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income for federal income tax purposes and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (1) pay applicable federal income taxes at the highest applicable marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made, (2) pay applicable state and local income taxes at the highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes and (3) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income. The payment of a Gross-Up Payment under this Section 3(a) shall in no event be conditioned upon the Executive's termination of employment or the receipt of severance benefits under this Agreement. (iib) Subject to the provisions of subsection (iii) belowSection 3(a), all determinations required to be made under this subsection (ii)Section 3, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized accounting firm selected by the Company Xxxxxx Consulting Inc. (the “"Accounting Firm”), ") which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date receipt of Termination, if applicablenotice from the Company or the Executive that there has been a Payment, or at such earlier time as is reasonably requested by the Company (collectively, the "Determination"). In the event that the Accounting Firm is serving as a consultant for the individual, entity or group effecting the Executive. For purposes of determining the amount of the Gross-Up PaymentChange in Control, the Executive may appoint a nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of the Accounting Firm shall be deemed to pay Federal income taxes at borne solely by the highest marginal rate Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of Federal income taxation applicable to individuals for the calendar year in which the services hereunder. The Gross-Up Payment is under this Section 3 with respect to any Payments shall be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on made no later than thirty (30) days following the date of such Payment. If the Terminating EventAccounting Firm determines that no Excise Tax is payable by the Executive, net of it shall furnish the maximum reduction in Federal income taxes which could be obtained from deduction of Executive with a written opinion to such state effect, and local taxes. The initial Gross-Up Paymentto the effect that failure to report the Excise Tax, if any, as determined pursuant to this subsection (ii), shall be paid to on the Executive within five (5) days Executive's applicable federal income tax return will not result in the imposition of the receipt of the Accounting Firm’s determinationa negligence or similar penalty. Any determination The Determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunderDetermination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “"Underpayment”") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any Underpayment (together with interest and penalties imposed on at the Underpayment and required to be paid by rate provided in Section 1274(b)(2)(B) of the Executive in connection with the proceedings described in subsection (iiiCode) below, shall be promptly paid by the Company to or for the benefit of the Executive. . In the event the amount of the Gross-Up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (iiitogether with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive to or for the benefit of the Company. The Executive shall notify cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in writing of connection with any claim by contests or disputes with the Internal Revenue Service thatin connection with the Excise Tax. (c) Notwithstanding Section 6 hereof, if successful, would require this Section 3 shall survive the payment termination of this Agreement unless the Executive's employment was terminated by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityCause. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to Executive in connection with a Change-in-Control or for the benefit termination of the Executive’s employment, whether paid such payments or payable or distributed or distributable benefits are received pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with the Company, with any other person whose actions result in a Change-in-Control or with any person affiliated with the Company or such other person (the all such payments and benefits being hereinafter called “Severance Total Payments”), would be subject (in whole or part), to the excise tax (the “Excise Tax”) imposed by under Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall pay to the Executive such additional amounts (the “Gross-Up Payment”) as may be necessary to place the Executive in the same after-tax position (taking into account the fact that the Gross-Up Payment itself is or may be subject to federal, state and local income, employment and excise taxes) as if no portion of the Total Payments had been subject to the Excise Tax. The amount of the Gross-Up Payment shall be calculated at the Company’s expense using the highest marginal tax rates, and shall be calculated by a “Big Four” accounting firm or nationally-recognized benefits consulting firm selected by the Company and reasonably acceptable to the Executive. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income, employment and excise 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 and local income, employment and excise tax deduction). In the event that the Excise Tax is determined to exceed the amount taken into account hereunder (including by reason of any interest payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess (plus any interest, penalties are incurred or additions payable by the Executive with respect to such excise tax excess) at the time that the amount of such excess is finally determined. The Executive (such excise taxwho shall immediately notify the Company of the commencement of any audit, together administrative or judicial proceedings) and the Company shall each reasonably cooperate with the other in connection with any such interest and penalties, are hereinafter collectively referred to as administrative or judicial proceedings concerning the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) such that the net existence or amount retained by the Executive, after deduction of any liability for Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to the Total Payments. The Executive will allow and hereby authorizes the Company to control any such Excise Taxaudit, shall be equal to administrative or judicial proceedings on the Severance PaymentsExecutive’s behalf. (ii) Subject Notwithstanding any provision of this Agreement to the provisions contrary, if but for this sentence, the Company would be obligated to make “parachute payments” to the Executive, whether under this Agreement, the terms of subsection any stock-based compensation award or any other agreement, contract or arrangement, but the aggregate “present value” of all such parachute payments does not exceed the lesser of (iiii) below, all determinations required (x) 1.10 multiplied by (y) three (3) times the Executive’s “base amount” or (ii) $350,000 plus three (3) times the Executive’s “base amount,” then the payments and benefits to be made paid or provided under this subsection Agreement will be reduced to the minimum extent necessary (iibut in no event to less than zero) so that no portion of the total payments or benefits due to the Executive on account of a Change-in-Control of the Company, determined after the reduction under this Agreement, constitutes an “excess parachute payment.” For purposes of this Section 13(b)(ii), including the terms “Change-in-Control,” “excess parachute payment,” “present value,” “parachute payment,” and “base amount” have the meanings assigned to them by Section 280G of the Code. The determination of whether a Gross-Up Payment any reduction in such payments or benefits to be provided under this Agreement is required and pursuant to the amount preceding sentence will be made, if requested by the Executive or the Company, at the expense of such Gross-Up Payment, shall be made the Company by a nationally “Big Four” accounting firm or nationally-recognized accounting benefits consulting firm selected by the Company (and reasonably acceptable to the “Accounting Firm”Executive. The fact that the Executive’s right to payments or benefits may be reduced by reason of the limitations contained in this Section 13(b)(ii) will not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement or otherwise is required to be reduced pursuant to this Section 13(b)(ii), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen will be entitled to designate the payments and/or benefits to be so reduced (15whether under this Agreement or otherwise) business days of in order to give effect to this Section 13(b)(ii). The Company will provide the Date of Termination, if applicable, or at such earlier time as is Executive with all information reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-Up Payment, Executive to permit the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of make such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”)designation. In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required fails to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than designation within ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature date of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest may effect such claim, and (D) permit the Company to participate reduction in any proceedings relating to such claim; providedmanner it deems appropriate. If, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred despite a reduction in connection payments and/or benefits in accordance with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iiiSection 13(b)(ii), the Company shall control all proceedings taken in connection with such contest andExecutive is required to pay an Excise Tax, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which paid a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contestin accordance with Section 13(b)(i), as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive but shall not be entitled to any refund with respect additional amounts relating to such claim and reduction in payments and/or benefits, notwithstanding the Company does not notify failure of the Executive in writing reduction to achieve the goal 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 paidavoiding an Excise Tax liability.

Gross-Up Payment. (i) In the event it shall be determined that If any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant payments made to the terms of Executive under this Agreement or otherwise Section 3.B (the “Severance Payments”), would "payments") will be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”") the ("Excise Tax"), (and/or any similar tax that may be imposed by federal, state or any interest or penalties are incurred by local law), Company shall pay to the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment amount (a “Grossthe "gross-Up Payment”up payment") such that equal to the net amount retained by sum of (x) the Executive, after deduction of any Excise Tax imposed on the Severance Paymentspayments, any Federal(y) the Excise Tax imposed on the gross-up payment, stateand (z) the federal, state and local income tax, employment tax and taxes imposed upon the gross-up payment. The gross-up payment shall be made within 45 days after the date of termination. For purposes of determining whether any of the payments will be subject to the Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up PaymentExcise Tax, shall any other payments or benefits received or to be made by a nationally recognized accounting firm selected received by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company in connection with a Change in Control or the Executive's termination (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, any person whose actions result in a Change in Control or any person affiliated with Company or such person) shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by Company and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code, or are otherwise not subject to the Excise Tax. For purposes of determining the amount of the Grossgross-Up Paymentup payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be madefederal, and state and local income taxes at the highest marginal rates rate of individual federal, state and local income taxation in the calendar year in which the gross-up payment is to be made in the state and locality of the Executive’s 's residence on the date of the Terminating Eventtermination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such any state and local income taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant Excise Tax is subsequently determined to subsection (iii) below and be less than the amount used to calculate the gross-up payment, the Executive thereafter shall repay to Company at the time that the reduction in Excise Tax is required finally determined the portion of the gross-up payment attributable to make a payment of any Excise Taxsuch reduction, the Accounting Firm shall determine plus interest on the amount of such repayment at the Underpayment rate provided in Section 7872(f)(2) of the Code. In the event that has occurredthe Excise Tax is determined to exceed the amount used to calculate the gross-up payment (including by reason of any payment the existence or amount of which cannot be determined at the time of the gross-up payment), consistent with the calculations required to be made hereunder, and any Company shall make an additional gross-up payment in respect of such Underpayment, and excess (plus any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmlessexcess is finally determined. For purposes of this Agreement, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension a termination of the statute Executive's employment shall be deemed to have occurred after a Change in Control (even if actual termination occurs prior to a Change in Control), if such termination occurs at any time after the commencement of limitations relating to payment of taxes for the taxable year a process or negotiations that culminates in an actual Change in Control. Accordingly, if any rights or benefits of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control are terminated or modified as of the contest date of such actual termination, such rights or benefits shall be limited to issues with respect to which reinstated, restored or recalculated on a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days retroactive basis 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 paidChange in Control.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement agreement or otherwise (the “Severance Payments”), would any other agreement will be subject to the excise tax (the "Excise Tax") imposed by Section 4999 of the Internal Revenue Code of 19861986 ("Code") or any successor or similar provision, as amended the Company shall pay Mr. Mahoney an additional amount (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") such that the net amount xxx xxx xxxunt retained by the Executive, Mr. Mahoney after deduction of any Excise Tax on the Severance Paymentssuch payments (exclxxxxx xxxxxnts pursuant to this Section 15), and after deduction for any Federalfederal, state, state and local income tax, employment tax and Excise Tax upon the payment provided for by this subsection, and any interest and/or penalties assessed with respect to such Excise TaxSection 15, shall be equal to the Severance Payments. amount of such payments (iiexcluding payments pursuant to this Section 15) Subject before payment of any Excise Tax (hereinafter the "Excise Tax Compensation Net Payment"). For purposes of determining whether any of such payments will be subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required Excise Tax and the amount of such Gross-Up PaymentExcise Tax, any payments or benefits received or to be received by Mr. Mahoney in connection with a Change of Control or his terminatiox xx xxxxxxment shall be made by a nationally recognized accounting firm treated as "parachute payments" within the meaning of Section 280G of the Code, and all "excess parachute payments" within the meaning of Section 280G of the Code shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both Company's independent auditors and acceptable to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, Mr. Mahoney such payments or at such earlier time as is reasonably requested by the Company or the Executivebenefits do not constitute parachute paxxxxxx xx xxcess parachute payments. For purposes of determining the amount of the Gross-Up Payment, the Executive Mr. Mahoney shall be deemed to pay Federal all federal income taxes at the highest marginal hxxxxxx xxxxinal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s his residence on the date Date of the Terminating EventTermination, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as In the event that the Excise Tax is subsequently determined pursuant to this subsection (ii), shall be paid to less than the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code amount taken into account hereunder at the time of termination of Mr. Mahoney's employment, Mr. Mahoney shall repay to the initial determination by Company, at xxx xxxx xxxt the Accounting Firm hereunderamount xx xxxx xxxuction in Excise Tax is finally determined, it is possible an amount necessary so that Gross-Up Payments which will not have been made by the Company should have been made total payments hereunder equal the Excise Tax Compensation Net Payment, plus interest on the amount of such repayment at a rate equivalent to the rate described in Section 280G (an “Underpayment”)d) (4) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection (iii) below and exceed the Executive thereafter is required to make a payment amount taken into account hereunder at the time of any Excise Taxthe termination of his employment, the Accounting Firm Company shall determine the amount make an additional Gross-Up Payment in respect of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and excess (plus any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes payable with respect to such claim is due). If excess) at the Company notifies the Executive in writing prior to the expiration of such period time that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amountfinally determined. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a The Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contestpaid not later than the Date of Termination or, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim if and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereofsuch payment is not known or calculable as of such date, as soon as the amount of Gross-Up Payment required to be paidis known and calculable.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with (A) the Company or (B) any Person (as defined in Section 4 (e)) 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 Section 280G of the Code, then, the Company shall pay to the Executive such additional amounts (the “Severance Payments”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") 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 Severance PaymentsTotal Payments and any federal, any Federal, state, state and local income tax, and employment tax taxes and Excise Tax upon the payment provided by this subsection, and any interest and/or penalties assessed with respect to such Excise Tax, shall be equal to the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both equal to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutiveTotal Payments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis Section 5(d), net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Executive shall repay to the Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment, if any, as determined pursuant Payment attributable to this subsection such reduction (ii), shall be paid to the Executive within five (5) days plus that portion of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Company should have been made (an “Underpayment”)Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the event that the Company exhausts its remedies pursuant Excise Tax is determined to subsection exceed the amount taken into account hereunder (iii) below and the Executive thereafter is required to make a payment including by reason of any Excise Tax, payment the Accounting Firm shall determine the existence or amount of which cannot be determined at the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company time of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross-Up Payment in respect of such claim and mayexcess (plus any interest, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund penalties or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited additions payable by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, excess) at the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company time that the amount of such refund (together excess is finally determined. The Executive and the Company shall each reasonably cooperate with the other in connection with any interest paid administrative or credited thereon after taxes applicable thereto). If, after judicial proceedings concerning the receipt by the Executive existence or amount of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund liability for Excise Tax with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paidTotal Payments.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary or any termination of this Agreement notwithstanding, in the event it shall be determined that any compensation, payment or distribution or benefit received or to be received by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or any other payment or distribution or benefit made or provided by the Company, CareInsite, or any of their Affiliates, to or for the benefit of Executive (whether pursuant to this Agreement or otherwise and determined without regard to any additional payments required under this Section 8) (the “Severance Payments”), a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise TaxTax imposed upon the Gross-Up Payment, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made any deductions actually disallowed under this subsection (ii), including whether Section 68 of the Code solely as a direct result of the inclusion of the Gross-Up Payment in the 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay Federal federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (ia) In the event it shall be determined that any compensation, payment payments or distribution by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of benefits under this Agreement or otherwise (any benefit plan or program of the “Severance Payments”), would be Company are subject to the excise tax (the "Excise Tax") imposed by Section Sections 4999 and/or 280G of the Internal Revenue Code of 1986, as amended (the “"Code”), ") or any interest or penalties are incurred by similar tax that may hereinafter be imposed) the Company shall pay to the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment amount or amounts (each, a “Gross-"Gross Up Payment”") such that the net amount or amounts retained by the Executive, after deduction of any Excise Tax on any of the Severance Paymentsabove described payments or benefits and any federal, any Federal, state, state and local income tax, employment and payroll tax and Excise Tax upon the payment payments provided for by this subsection, and any interest and/or penalties assessed with respect to such Excise TaxSection 7, shall be equal to the Severance Paymentsamount of such payments or benefits prior to the imposition of such Excise Tax. (iib) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executive. For purposes of determining the amount of the Gross-a Gross Up Payment, the Executive shall be deemed to pay Federal federal income taxes at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Gross Up Payment is to be madepayable and, and if applicable, state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date of the Terminating EventGross Up Payment is payable, net of the maximum reduction in Federal federal income taxes which could be obtained from any available deduction of such state and local taxes. The initial Gross-If the Parties are unable to agree as to the amount of the Gross Up Payment, if any, as determined pursuant to this subsection (ii), then such amount shall be determined by an independent public accounting firm or other tax professional selected by the Executive but reasonably acceptable to the Company. The determination of such accounting firm or tax professional shall be conclusive and binding upon the Parties absent fraud or manifest error. The Company shall pay all of the fees and expenses of such public accounting firm or tax professional. (c) In the event that the amount of the Excise Tax is subsequently determined to be less than the amount taken into account in calculating a Gross Up Payment hereunder, the Executive shall repay to the Company (to the extent actually paid to the Executive within five (5) days Executive), at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the receipt Gross Up Payment attributable to such reduction (plus the portion of the Accounting Firm’s determinationGross Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross Up Payment being repaid by the Executive, but only to the extent that such repayment results in a reduction in, or a refund of, the aggregate Excise Tax and/or federal and state and local income tax imposed for all tax years on the Gross Up Payment being repaid by the Executive) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. Any In no event, however, shall this paragraph require the Executive to repay to the Company amounts that have been paid to the Internal Revenue Service or United States Treasury that have not been refunded to the Executive by them nor to repay interest on such amounts in excess of interest received from them. (d) In the event that the amount of the Excise Tax is determined (including any determination by the Accounting Firm shall Internal Revenue Service) to exceed the amount taken into account in calculating a Gross Up Payment hereunder (including by reason of any payment the existence or amount of which cannot be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code determined at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Gross Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority make an additional Gross Up Payment in respect of such claim and may, excess (plus any interest or penalty payable with respect to such excess) 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, time that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount excess is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authorityfinally determined. (ive) IfEach Gross Up Payment shall be payable, after the receipt by the Executive of an amount advanced and shall be paid, by the Company pursuant to subsection (iii) above, on the date on which the Executive becomes entitled to receive any refund with respect the payment or benefits giving rise to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Gross Up Payment required to be paidPayment.

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensation, payment or distribution or benefit received or to be received by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or any other payment or distribution or benefit made or provided by the Company, or any of its Affiliates, to or for the benefit of Executive (whether pursuant to this Agreement or otherwise and determined without regard to any additional payments required under this Section 7) (the a “Severance PaymentsPayment”), ) would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”), ) or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment (a “Gross-Up Payment”) in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise TaxTax imposed upon the Gross-Up Payment, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions actually disallowed under Section 68 of the Code solely as a direct result 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, Executive shall be deemed to (i) pay federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. (ii) Subject to the provisions of subsection (iiiSections 7(i) belowand 7(iii), all determinations required to be made under this subsection (ii)Section 7, including whether and when a Gross-Up Payment is required and the amount of such Gross-Up PaymentPayment and the assumptions to be utilized in arriving at such determination, shall be made by a nationally recognized the Company’s certified public accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) 15 business days of the Date receipt of Termination, if applicablenotice from Executive or the Company that there has been a Payment, or at such earlier time as is reasonably requested by the Company or the ExecutiveCompany. For purposes of determining the amount All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up Payment, the Executive shall be deemed to pay Federal income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii)Section 7, shall be paid by the Company to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to subsection (iiiSection 7(iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, occurred and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service U.S. IRS (the “IRS”) that, if successful, would require the payment by the Company of the Gross-up Up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows is informed in writing of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day 30-day period following the date on which he Executive gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.:

Gross-Up Payment. (i) In Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any compensation, payment or distribution or benefit received or to be received by the Company to or for the benefit of the Executive, whether paid or payable or distributed or distributable Executive pursuant to the terms of this Agreement or any other payment or distribution or benefit made or provided by the Company, or any of its Affiliates, to or for the benefit of Executive (whether pursuant to this Agreement or otherwise and determined without regard to any additional payments required under this Section 7) (the “Severance Payments”), a "Payment") would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “"Code”), ") or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are is hereinafter collectively referred to as the “"Excise Tax”"), then the Executive shall be entitled to receive an additional payment (a “"Gross-Up Payment”") in an amount such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including, without limitation, any income and employment taxes (and any interest and penalties imposed with respect thereto) and Excise TaxTax imposed upon the Gross-Up Payment, shall be Executive retains an amount of the Gross-Up Payment equal to the Severance Payments. sum of (iix) Subject to the provisions Excise Tax imposed upon the Payments and (y) the product of subsection (iii) below, all determinations required to be made any deductions actually disallowed under this subsection (ii), including whether Section 68 of the Code solely as a direct result 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 required and the amount of such Gross-Up Payment, shall to be made by a nationally recognized accounting firm selected by the Company (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the Executivemade. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay Federal federal income taxes at the highest marginal rates of federal income taxation for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of Federal income taxation applicable to individuals for the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rates of individual taxation in the state and locality of Executive’s residence on the date of the Terminating Event, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred, consistent with the calculations required to be made hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with the Company in good faith in order to effectively contest such claim, and (D) permit the Company to participate in any proceedings relating to such claim; provided, however, that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.

Gross-Up Payment. (i) In the event it shall be determined that any compensation, payment or distribution benefit received or to be received by the Company to or for the benefit of the Executive, Executive (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise any other plan, arrangement or agreement with (A) the Company, (B) any Person (as defined in Section 5(e)) whose actions result in a "change in control" (for purposes of Section 280G of the Internal Revenue Code (the “Severance "Code")) or (C) any Person affiliated with the Company 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 of 1986, as amended (the “Code”), or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise taxcollectively, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”")), then then, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") such that the net amount retained after payment by the Executive, after deduction Executive of any Excise Tax on the Severance Payments, any Federal, state, and local income tax, employment tax and Excise Tax upon the payment provided by this subsection, and all taxes (including any interest and/or or penalties assessed imposed with respect to such taxes), including any Excise Tax, shall be equal to imposed on the Severance Payments. (ii) Subject to the provisions of subsection (iii) below, all determinations required to be made under this subsection (ii), including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be made by a nationally recognized accounting firm selected by the Company (Executive retains an amount of the “Accounting Firm”), which shall provide detailed supporting calculations both Gross-Up Payment equal to the Company and Excise Tax imposed upon the Executive within fifteen (15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company or the ExecutivePayments. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay Federal federal income taxes tax at the highest marginal rate of Federal federal income taxation applicable to individuals for in the calendar year in which the Gross-Up Payment is to be made, made and state and local income taxes at the highest marginal rates rate of individual taxation in the state and locality of the Executive’s 's residence on the date on which the Gross-Up Payment is calculated for purposes of the Terminating Eventthis section, net of the maximum reduction in Federal federal income taxes which could be obtained from deduction of such state and local taxes. The initial Gross-Up Payment, if any, as determined pursuant to this subsection (ii), shall be paid to the Executive within five (5) days of the receipt of the Accounting Firm’s determination. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”). In the event that the Company exhausts its remedies pursuant Excise Tax is subsequently determined to subsection (iii) below and the Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm shall determine be less than the amount of the Underpayment that has occurred, consistent with the calculations required to be made taken into account hereunder, and any such Underpayment, and any interest and penalties imposed on the Underpayment and required to be paid by the Executive in connection with the proceedings described in subsection (iii) below, shall be promptly paid by the Company to or for the benefit of the Executive. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment by the Company of the Gross-up Payment. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive knows of such claim and shall apprise the Company of the nature of such claim and the date on which such claim is requested to be paid. The Executive shall not pay such claim prior to the expiration of the thirty (30)-day period following the date on which he gives such notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is due). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, provided that the Company has set aside adequate reserves to cover the Underpayment and any interest and penalties thereon that may accrue, the Executive shall: (A) give the Company any information reasonably requested by the Company relating shall repay to such claim, (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney selected by the Company, (C) cooperate with at 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, time that the Company shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this subsection (iii), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay such claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive on an interest-free basis (to the extent not prohibited by applicable law) and shall indemnify and hold the Executive harmless, on an after-tax basis, from any reduction in Excise Tax or income tax, including interest or penalties with respect thereto, imposed with respect to such advance or with respect to any imputed income with respect to such advance; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of the contest shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issues raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, the Executive becomes entitled to receive any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of subsection (iii) above) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to subsection (iii) above, a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of thirty (30) days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid.finally