Common use of Gross-Up Payments Clause in Contracts

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that any payment 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 but determined without regard to any additional payments required under this Section 2.1(f)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) 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 after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurred. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Gross-up Payment(s). (ii) Subject to the provisions of Section 2.1(f)(iii), all determinations required to be made under this Section 2.1(f), including whether and when a Gross-up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the outside accounting firm that then audits the Company’s financial statements (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of notice from the Company or the Executive that there has been or will be a Payment. In the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder). All fees and expenses of the Accounting Firm shall be paid solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iii) below and a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be due, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or state income tax purposes. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment of the Excise Tax. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a 30-day period following the date on which the Executive has given such notification to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (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 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 to the Executive, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such contest. Without limitation on the foregoing provisions of this Section 2.1(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction or in one or more appellate courts, as the Company shall determine.

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that If any payment or the value of any benefit received or to be received by the Company to Executive in connection with the Executive’s termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the “Agreement Payments”) or otherwise but determined without regard to of any additional payments required under this Section 2.1(fother plan, arrangement, or agreement of the Company, its successors, any person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them (“Other Payments” and, together with the Agreement Payments, the “Payments”)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provisionthe “Tax Code”) or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis thereto shall be equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each total present value of the three years immediately following Agreement Payments and Other Payments at the year in which the Date of Termination occurredtime such Payments are to be made. The intent of the parties is that the Company shall be solely responsible in full for, for and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) Up Payment and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) Up Payments as well as any loss of deduction caused by or related to the Gross-up Payment(s). (ii) Subject to the provisions of Section 2.1(f)(iii), all determinations required to be made under this Section 2.1(f), including whether and when a Gross-up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by the outside accounting firm that then audits the Company’s financial statements (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of notice from the Company or the Executive that there has been or will be a Payment. In the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder). All fees and expenses of the Accounting Firm shall be paid solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iii) below and a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be due, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or state income tax purposesPayment. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment of the Excise Tax. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a 30-day period following the date on which the Executive has given such notification to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (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 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 to the Executive, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such contest. Without limitation on the foregoing provisions of this Section 2.1(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction or in one or more appellate courts, as the Company shall determine.

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall be determined that any payment or the value of any benefit received or to be received by the Company Executive in connection with the Executive's Termination or contingent upon a Change in Control, whether received or to or for the benefit of the Executive (whether paid or payable or distributed or distributable be received pursuant to the terms of this Agreement or otherwise but determined without regard to of any additional payments required under this Section 2.1(fother plan, arrangement or agreement (the "Payments")) (a “Payment”) , would be subject to the excise tax imposed by Code Section 4999 (or any successor provision) comparable federal, state or any interest or penalties are incurred by the Executive with respect to such local excise tax (such excise taxtaxes, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to or for the benefit of the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") in an amount such that the net amount retained by the Executive, after deduction of the Excise Tax on the Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Section VII, and any interest, penalties or additions to tax payable by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis shall be equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each total value of the three years immediately following the year in which the Date of Termination occurredPayments. The intent of the parties is that the Company shall be solely responsible in full for, for and shall pay, pay any and all Excise Tax on any Payments and the Gross-up Payment(s) Up Payment and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) Up Payments as well as any loss of deduction caused by or related to the Gross-up Payment(s). (ii) Subject Up Payment. Notwithstanding the immediately preceding paragraph, in the event that a reduction to the provisions Payments in respect of Section 2.1(f)(iii)the Executive of 5% or less, all determinations required but in no event in excess of $500,000, would cause no Excise Tax to be made under this Section 2.1(f)payable, including whether and when the Executive will not be entitled to a Gross-up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, Payments shall be made by reduced to the outside accounting firm extent necessary so that then audits the Company’s financial statements (Payments shall not be subject to the “Accounting Firm”), which Accounting Firm Excise Tax. Unless the Executive shall provide detailed supporting calculations both have given prior written notice to the Company specifying a different order by which to effectuate the foregoing, the Company shall reduce or eliminate the Payments (x) by first reducing or eliminating the portion of the Payments which are not payable in cash (other than that portion of the Payments subject to clause (z) hereof), (y) then by reducing or eliminating cash payments (other than that portion of the Payments subject to clause (z) hereof) and (z) then by reducing or eliminating the portion of the Payments (whether payable in cash or not payable in cash) to which Treasury Regulation Section 1.280G-1 Q/A 24(c) (or successor thereto) applies, in each case in reverse order beginning with payments or benefits which are to be paid the Executive within fifteen (15) business days of receipt of notice farthest in time from the Company or the Executive that there has been or will be a Payment. In the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting date of the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder). All fees and expenses of the Accounting Firm shall be paid solely by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iii) below and a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be due, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible notice given by the Executive for federal or state income tax purposes. (iii) The Executive pursuant to the preceding sentence shall notify take precedence over the Company in writing provisions of any claim by the Internal Revenue Service thatother plan, if successful, would require the payment of the Excise Tax. Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior to the expiration of a 30-day period following the date on which the Executive has given such notification to the Company (arrangement or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (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 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 to agreement governing the Executive, for 's rights and entitlements to any Excise Tax benefits or income tax (including interest and penalties with respect thereto) imposed as a result of such contest. Without limitation on the foregoing provisions of this Section 2.1(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim and may, at its sole option, either direct the Executive to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction or in one or more appellate courts, as the Company shall determinecompensation.

Gross-Up Payments. (i1) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that If any payment or the value of any benefit received or to be received by the Company to Executive in connection with the Executive’s termination or for the benefit contingent upon a Change of Control (as hereinafter defined) of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the “Agreement Payments”) or otherwise but determined without regard to of any additional payments required under this Section 2.1(fother plan, arrangement, or agreement of the Company, its successors, any person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them (“Other Payments” and, together with the Agreement Payments, the “Payments”)) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provisionthe “Tax Code”) or any interest comparable federal, state, or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a the “Gross-Up Payment”) in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income, payroll and/or employment tax and Excise Tax upon the payment provided for by Section 8 hereof, and any interest, penalties, or additions to tax payable by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis thereto shall be equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each total present value of the three years immediately following Agreement Payments and Other Payments at the year in which the Date of Termination occurredtime such Payments are to be made. The intent of the parties is that the Company shall be solely responsible in full for, for and shall pay, any and all Excise Tax on any Payments and any Gross-up Payment(s) Up Payment and any income and all excise and income, payroll and/or employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) Up Payments as well as any loss of deduction caused by or related to the Gross-up Payment(s)Up Payment. (ii2) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(f8(e)(vi), including including, without limitation, whether and when a Gross-up Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by tax counsel (either a law firm or a nationally recognized public accounting firm) selected by the outside accounting firm that then audits Company and reasonably acceptable to the Company’s financial statements Executive (the “Accounting FirmTax Counsel”), which Accounting Firm . The Company shall cause the Tax Counsel to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by the Executive to the Company that any or all of the Executive that there has been Payments have occurred, or will be a Paymentsuch earlier time as is requested by the Company. In Within two (2) business days after such notice is given to the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in ControlCompany, the Executive Company shall appoint another nationally recognized accounting firm instruct the Tax Counsel to make timely provide the determinations data required hereunder (which accounting firm by this Section 8(e)(viii) to the Executive. The Company shall then be referred to as the “Accounting Firm” hereunder). All pay all fees and expenses of the Accounting Firm Tax Counsel. The Company shall be paid solely by pay any Excise Tax determined pursuant to this Section 8(e)(viii) to the CompanyInternal Revenue Service (the “IRS”) and/or other appropriate taxing authority on behalf of the Executive within five (5) days after receipt of the Tax Counsel’s determination. If the Accounting Firm Tax Counsel determines that there is substantial authority (within the meaning of Section 6662 of the Tax Code) that no Excise Tax is payable by the Executive, it the Tax Counsel shall furnish the Executive with a written opinion that the failure to disclose or report the Excise Tax on the Executive’s applicable federal income tax return would will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm Tax Counsel shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Tax Code at the time of the initial determination by the Accounting Firm Tax Counsel hereunder, it is possible that the Company will not have made Gross-Up Payments will not have been made by the Company that should have been made or that the it will have made Gross-Up Payments will have been made that should not have been made, in each case case, consistent with the calculations required to be made hereunder. In the event that If the Company exhausts its remedies pursuant to Section 2.1(f)(iii8(e)(viii)(3) below and a payment of any the Executive is thereafter required to pay an Excise Tax or any interest, penalty or addition to tax related thereto is determined to be dueTax, the Accounting Firm Tax Counsel shall determine the amount of the underpayment of Excise Taxes that has occurred and the Company shall promptly pay any such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service IRS or other appropriate taxing authority on the Executive’s behalf or, if the Executive has previously paid such underpayment, to the Executive. Such payment shall in satisfaction of all events be paid within ninety (90) days after the Company’s original withholding obligationsTax Counsel determines that a payment is required. In If the event that the Accounting Firm Tax Counsel determines that an overpayment of Gross-Up Payment(s) Payments has occurred, any such overpayment shall be treated for all purposes as a loan to the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Tax Code, due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment loan if the Executive’s receipt of the overpayment, or any portion thereof, is included includible in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or and state income tax purposes. (iii3) The Executive shall notify the Company Company, in writing of any claim by the Internal Revenue Service IRS or state or local taxing authority, that, if successful, would require the payment result in any Excise Tax or an underpayment of the Excise TaxGross-Up Payments. Such notification notice shall be given as soon as practicable but no later than ten fifteen (1015) business days after the Executive is informed in writing of such the claim by the Internal Revenue Service and the notification shall apprise inform the Company of the nature of the claim claim, the administrative or judicial appeal period, and the date on which such any payment of the claim is required to must be paid. The Executive shall not pay such any portion of the claim prior to before the expiration of a the thirty (30-) day period following the date on which the Executive has given gives such notification notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such amount under the claim is requireddue). If the Company notifies the Executive in writing prior to before the expiration of such thirty (30) day period that it desires to contest such the claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such the claim; (B) take such action in connection with contesting such the claim as the Company shall reasonably request in writing from time to time, including including, without limitation, accepting legal representation with respect to such concerning the claim by an attorney reasonably selected by the Company;Company who is reasonably acceptable to the Executive; and (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 including, without limitation, additional interest and penaltiespenalties and attorneys’ fees) incurred in connection with such contest, contests and shall indemnify and hold the Executive harmless, on an after-tax basis to the Executivebasis, for any Excise Tax or income tax (including including, without limitation, interest and penalties with respect theretothereon) imposed as a result of such contestrepresentation. Without limitation on upon the foregoing provisions of this Section 2.1(f8(e)(viii)(3)(C), except as provided below, the Company shall control all proceedings taken in connection with concerning such contest and, at in its sole optionopinion, may pursue or forgo any and all administrative appealsappeal, proceedings, hearings and conferences with the taxing authority in respect of such claim pertaining to the claim. At the Company’s written request and may, at its sole option, either direct upon payment to the Executive of an amount at least equal to the claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court, the Executive shall pay the tax claimed same and xxx for a refund or contest the claim in any permissible manner, and the refund. The Executive agrees to prosecute such any contest of a claim to a determination before any administrative tribunal, in a court of initial jurisdiction or and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to the assessment of any Excise Tax for the taxable year of the Executive that is subject of the claim is to be limited solely to the claim. Furthermore, the Company’s control of the contest shall be limited to the issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the IRS or any other taxing authority. (4) If, after the Executive receives an amount the Company advanced pursuant to Section 8(e)(vii)(3) above, the Executive receives any refund of a claim and/or any additional amount that was necessary to obtain jurisdiction, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the Executive receives an amount the Company advanced pursuant to Section 8(e)(vii)(3) above, a determination is made that the Executive shall not be entitled to any refund of the claim, and the Company does not notify the Executive in writing of its intent to contest such denial or refund of a claim before the expiration of the thirty (30) days after such determination, then the portion of such advance attributable to a claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a claim shall offset, to the extent thereof, the amount of the underpayment required to be paid by the Company to the Executive. (5) If, after the Company advances an additional amount necessary to obtain jurisdiction, there is a final determination made by the taxing authority that the Executive is not entitled to any refund of such amount, or any portion thereof, then the Executive shall repay such nonrefundable amount to the Company within thirty (30) days after the Executive receives notice of such final determination. A final determination shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing the same has expired.

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall be determined that any payment or the value of any benefit received or to be received by the Company to Executive in connection with the Executive's Termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise but determined without regard to of any additional payments required under this Section 2.1(f)other plan, arrangement or agreement of the Company, its successors, any person whose actions result in a Change of Control of the Company or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them) (a “Payment”"Other Payments" and, together with the Agreement Payments, the "Payments")) would be subject to the excise tax imposed by Code Section 4999 of the Internal Revenue Code of 1986, as amended (or any successor provisionthe "Code") or any interest comparable federal, state or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") in an amount such that the net amount retained by the Executive, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state and local income tax and Excise Tax upon the payment provided for by this Subsection IV(e)(i), and any interest, penalties or additions to tax payable by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis thereto shall be equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each total present value of the three years immediately following Agreement Payments and Other Payments at the year in which the Date of Termination occurredtime such Payments are to be made. The intent of the parties is that the Company shall be solely responsible in full for, for and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) Up Payment and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) Up Payments as well as any loss of deduction caused by or related to the Gross-up Payment(s)Up Payment. (ii) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(fSubsection IV(e), including including, without limitation, whether and when a Gross-up Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by tax counsel selected by the outside accounting firm that then audits Company and reasonably acceptable to the Company’s financial statements Executive ("Tax Counsel"). The Company shall cause the “Accounting Firm”), which Accounting Firm shall Tax Counsel to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by the Executive to the Company that any or all of the Executive that there has been Payments have occurred, or will be a Paymentsuch earlier time as is requested by the Company. In Within two (2) business days after such notice is given to the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in ControlCompany, the Executive Company shall appoint another nationally recognized accounting firm instruct the Tax Counsel to make timely provide the determinations data required hereunder (which accounting firm shall then be referred by this Subsection IV(e) to as the “Accounting Firm” hereunder)Executive. All fees and expenses of the Accounting Firm Tax Counsel shall be paid solely by the Company. Any Excise Tax as determined pursuant to this Subsection IV(e) shall be paid by the Company to the Internal Revenue Service and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Tax Counsel's determination. If the Accounting Firm Tax Counsel determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by the Executive, it the Tax Counsel shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive’s applicable 's federal income tax return would will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm Tax Counsel shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm Tax Counsel hereunder, it is possible that the Gross-Up Payments will not have been made by the Company Corporation that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iiiSubsection IV(e)(iii) below and the Executive is thereafter required to make a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be dueTax, the Accounting Firm Tax Counsel shall determine the amount of the underpayment of Excise Taxes that has occurred and any such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of or other appropriate taxing authority on the Company’s original withholding obligationsExecutive's behalf or, if such underpayment has been previously paid by the Executive, to the Executive. In the event that the Accounting Firm Tax Counsel determines that an overpayment of Gross-Up Payment(s) Payments has occurred, any such overpayment shall be treated for all purposes as a loan to the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code, due and payable within ninety (90) days after written demand to the Executive by the Company; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if loan unless the Executive’s 's receipt of the overpayment, or any portion thereof, is included includible in the Executive’s 's income and the Executive’s 's repayment of the same is not deductible by the Executive for federal or and state income tax purposes. (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or state or local taxing authority, that, if successful, would require the payment result in any Excise Tax or an underpayment of the Excise TaxGross-Up Payments. Such notification notice shall be given as soon as practicable but no later than ten fifteen (1015) business days after the Executive is informed in writing of such the claim by the Internal Revenue Service and the notification shall apprise inform the Company of the nature of the claim claim, the administrative or judicial appeal period, and the date on which such any payment of the claim is required to must be paid. The Executive shall not pay such any portion of the claim prior to the expiration of a the thirty (30-) day period following the date on which the Executive has given gives such notification notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such amount under the claim is requireddue). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest such the claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such the claim; (B) take such action in connection with contesting such the claim as the Company shall reasonably request in writing from time to time, including including, without limitation, accepting legal representation with respect to such concerning the claim by an attorney reasonably selected by the Company;Company who is reasonably acceptable to the Executive; and (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 including, without limitation, additional interest and penaltiespenalties and attorneys' fees) incurred in connection with such contest, contests and shall indemnify and hold the Executive harmless, on an after-tax basis to the Executivebasis, for any Excise Tax or income tax (including including, without limitation, interest and penalties with respect theretothereon) imposed as a result of such contestrepresentation. Without limitation on upon the foregoing provisions of this Section 2.1(fSubsection IV(e)(iii), except as provided below, the Company shall control all proceedings taken in connection with concerning such contest and, at in its sole optionopinion, may pursue or forgo forego any and all administrative appealsappeal, proceedings, hearings and conferences with the taxing authority in respect pertaining to the claim. At the written request of such claim the Company and may, at its sole option, either direct upon payment to the Executive of an amount at least equal to the claim plus any additional amount necessary to obtain the jurisdiction of the appropriate tribunal and/or court, the Executive shall pay the tax claimed same and xxx for a refund or contest the claim in any permissible manner, and the refund. The Executive agrees to prosecute such any contest of a claim to a determination before any administrative tribunal, in a court of initial jurisdiction or and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests the Executive to pay the claim and xxx for a refund, the Company shall advance the amount of such payment to the Executive, on an interest-free basis, and shall indemnify and hold the Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of the Executive which is the subject of the claim is to be limited solely to the claim. Furthermore, the Company's control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. The Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Subsection IV(e)(iii) above, the Executive receives any refund of a claim and/or any additional amount that was necessary to obtain jurisdiction, the Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Subsection IV(e)(iii) above, a determination is made that the Executive shall not be entitled to any refund of the claim and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a claim prior to the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a claim shall offset, to the extent thereof, the amount of the underpayment required to be paid by the Company to the Executive. (v) If, after the advance by the Company of an additional amount necessary to obtain jurisdiction, there is a final determination made by the taxing authority that the Executive is not entitled to any refund of such amount, or any portion thereof, then such nonrefundable amount shall be repaid to the Company by the Executive within thirty (30) days after the Executive receives notice of such final determination. A final determination shall occur when the period to contest or otherwise appeal any decision by an administrative tribunal or court of initial jurisdiction has been waived or the time for contesting or appealing the same has expired.

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in the event that it shall be determined that If any payment or the value of any benefit received or to be received by the Company to Executive in connection with the Executive's Termination or for the benefit contingent upon a Change of Control of the Executive Company (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise but determined without regard to of any additional payments required under this Section 2.1(fother plan, arrangement, or agreement of the Company, its successors, any person whose actions result in a Change of Control of the Company, or any person affiliated with any of them (or which, as a result of the completion of the transactions causing a Change of Control, will become affiliated with any of them ("Other Payments" and, together with the Agreement Payments, the "Payments")) (a “Payment”) would be subject to the excise tax imposed by Code Section 4999 (of the Code or any successor provision) comparable federal, state, or any interest or penalties are incurred by the Executive with respect to such local excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “"Excise Tax”"), then as determined as provided below, the Company shall pay to the Executive shall be entitled to receive an additional payment amount (a “the "Gross-Up Payment”") in an amount such that the net amount the Executive retains, after deduction of the Excise Tax on Agreement Payments and Other Payments and any federal, state, and local income tax and Excise Tax upon the payment provided for by this Section 4(f)(i), and any interest, penalties, or additions to tax payable by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including, without limitation, any income taxes (and any interest or penalties imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment on an after-tax basis thereto shall be equal to the Excise Tax imposed upon the Payment. Any Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each total present value of the three years immediately following Agreement Payments and Other Payments at the year in which the Date of Termination occurredtime such Payments are to be made. The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Payment(s) as well as any loss of deduction caused by or related to the Gross-up Payment(s).Company (ii) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(f4(f), including including, without limitation, whether and when a Gross-up Up Payment is required and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, shall be made by tax counsel (either a law firm or a nationally recognized public accounting firm) selected by the outside accounting firm that then audits Company and reasonably acceptable to the Company’s financial statements Executive ("Tax Counsel"). The Company shall cause the “Accounting Firm”), which Accounting Firm shall Tax Counsel to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by the Executive to the Company that any or all of the Executive that there has been Payments have occurred, or will be a Paymentsuch earlier time as is requested by the Company. In Within two (2) business days after such notice is given to the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in ControlCompany, the Executive Company shall appoint another nationally recognized accounting firm instruct the Tax Counsel to make timely provide the determinations data required hereunder (which accounting firm by this Section 4(f) to the Executive. The Company shall then be referred to as the “Accounting Firm” hereunder). All pay all fees and expenses of the Accounting Firm Tax Counsel. The Company shall be paid solely by pay any Excise Tax determined pursuant to this Section 4(f) to the CompanyInternal Revenue Service ("IRS") and/or other appropriate taxing authority on the Executive's behalf within five (5) days after receipt of the Tax Counsel's determination. If the Accounting Firm Tax Counsel determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by the Executive, it the Tax Counsel shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive’s applicable 's federal income tax return would will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm Tax Counsel shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm Tax Counsel hereunder, it is possible that the Company will not have made Gross-Up Payments will not have been made by the Company that should have been made or that the it will have made Gross-Up Payments will have been made that should not have been made, in each case case, consistent with the calculations required to be made hereunder. In the event that If the Company exhausts its remedies pursuant to Section 2.1(f)(iii4(f)(iii) below and a payment of the Executive is thereafter required to pay any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be dueTax, the Accounting Firm Tax Counsel shall determine the amount of the underpayment of Excise Taxes that has occurred and the Company shall promptly pay any such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or state income tax purposes.IRS or (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service IRS or state or local taxing authority, that, if successful, would require the payment result in any Excise Tax or an underpayment of the Excise TaxGross-Up Payments. Such notification notice shall be given as soon as practicable but no later than ten fifteen (1015) business days after the Executive is informed in writing of such the claim by the Internal Revenue Service and the notification shall apprise inform the Company of the nature of the claim claim, the administrative or judicial appeal period, and the date on which such any payment of the claim is required to must be paid. The Executive shall not pay such any portion of the claim prior to before the expiration of a the thirty (30-) day period following the date on which the Executive has given gives such notification notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such amount under the claim is requireddue). If the Company notifies the Executive in writing prior to before the expiration of such thirty (30) day period that it desires to contest such the claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such the claim; (B) take such action in connection with contesting such the claim as the Company shall reasonably request in writing from time to time, including including, without limitation, accepting legal representation with respect to such concerning the claim by an attorney reasonably selected by the Company;Company who is reasonably acceptable to the Executive; and (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 including, without limitation, additional interest and penaltiespenalties and attorneys' fees) incurred in connection with such contest, contests and shall indemnify and hold the Executive harmless, on an after-tax basis to the Executivebasis, for any Excise Tax or income tax (including including, without limitation, interest and penalties with respect theretopenalties (iv) imposed as If, after the Executive receives an amount the Company advanced pursuant to Section 4(f)(iii) above, the Executive receives any refund of a result claim and/or any additional amount that was necessary to obtain jurisdiction, the Executive shall promptly pay to the Company the amount of such contestrefund (together with any interest paid or credited thereon after taxes applicable thereto). Without limitation on If, after the foregoing provisions Executive receives an amount the Company advanced pursuant to Section 4(f)(iii) above, a determination is made that the Executive shall not be entitled to any refund of this Section 2.1(f)the claim, and the Company does not notify the Executive in writing of its intent to contest such denial of refund of a claim before the expiration of thirty (30) days after such determination, then the portion of such advance attributable to a claim shall be forgiven and shall not be required to be repaid. The amount of such advance attributable to a claim shall offset, to the extent thereof, the amount of the underpayment required to be paid by the Company shall control all proceedings taken in connection with such contest andto the Executive. (v) If, at its sole optionafter the Company advances an additional amount necessary to obtain jurisdiction, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with there is a final determination made by the taxing authority in respect that the Executive is not entitled to any refund of such claim and mayamount, at its sole optionor any portion thereof, either direct then the Executive shall repay such nonrefundable amount to pay the tax claimed and xxx for a refund or contest the claim in any permissible manner, and Company within thirty (30) days after the Executive agrees receives notice of such final determination. A final determination shall occur when the period to prosecute such contest to a determination before or otherwise appeal any decision by an administrative tribunal, in a tribunal or court of initial jurisdiction has been waived or in one the time for contesting or more appellate courts, as appealing the Company shall determinesame has expired.

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by the Company to Executive in connection with Executive's Termination or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise but determined without regard to of any additional payments required under this Section 2.1(f)other plan, arrangement or agreement of the Company, its successors, any person whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 of the Code (or any successor provision) 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 as determined in this Subsection IV(e), 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 by Executive, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes)federal, includingstate, without limitation, any and local income taxes (and any interest or penalties imposed with respect thereto) employment tax and Excise Tax imposed payable by Executive upon the Gross-Up PaymentPayment(s) provided for by this Subsection IV(e)(i), the and any interest, penalties or additions to tax payable by Executive retains an amount of the Gross-Up Payment on an after-tax basis with respect thereto shall be equal to the Excise Tax imposed upon on the Payment. Any Payments (the "Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurredPayment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Up Payment(s) as well as any loss of deduction caused by or related to the Gross-up Up Payment(s). (ii) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(fSubsection IV(e), including including, without limitation, whether and when a Gross-up Up Payment is required required, and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, unless otherwise set forth in this Agreement, shall be made by the outside a nationally recognized certified public accounting firm that then audits selected by the Company’s financial statements Company and reasonably acceptable to Executive (the “"Accounting Firm”"). For purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Company shall cause the Accounting Firm shall to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by Executive to the Company that any or the Executive that there has been or will be a Payment. In the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder). All fees and expenses all of the Accounting Firm shall be paid solely Payments have occurred, or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iii) below and a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be due, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or state income tax purposes. Within two (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment of the Excise Tax. Such notification shall be given as soon as practicable but no later than ten (102) business days after the Executive such notice is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior given to the expiration of a 30-day period following the date on which the Executive has given such notification to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (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 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 to the Executive, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such contest. Without limitation on the foregoing provisions of this Section 2.1(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with instruct the taxing authority in respect of such claim and may, at its sole option, either direct Accounting Firm to timely provide 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 or in one or more appellate courts, as the Company shall determine.data required by this Subsection IV(e)(ii)

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by the Company to Executive in connection with Executive's Termination or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Amended Agreement (the "Agreement Payments") or otherwise but determined without regard to of any additional payments required under this Section 2.1(f)other plan, arrangement or agreement of the Company, its successors, any person whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 of the Code (or any successor provision) 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 as determined in this Subsection IV(e), 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 by Executive, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes)federal, includingstate, without limitation, any and local income taxes (and any interest or penalties imposed with respect thereto) employment tax and Excise Tax imposed payable by Executive upon the Gross-Up PaymentPayment(s) provided for by this Subsection IV(e)(i), the and any interest, penalties or additions to tax payable by Executive retains an amount of the Gross-Up Payment on an after-tax basis with respect thereto shall be equal to the Excise Tax imposed upon on the Payment. Any Payments (the "Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurredPayment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Up Payment(s) as well as any loss of deduction caused by or related to the Gross-up Up Payment(s). (ii) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(fSubsection IV(e), including including, without limitation, whether and when a Gross-up Up Payment is required required, and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, unless otherwise set forth in this Amended Agreement, shall be made by the outside a nationally recognized certified public accounting firm that then audits selected by the Company’s financial statements Company and reasonably acceptable to Executive (the “"Accounting Firm”"). For purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Company shall cause the Accounting Firm shall to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by Executive to the Company that any or the Executive that there has been or will be a Payment. In the event that the Accounting Firm is serving as the accountant or auditor for the Person effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder). All fees and expenses all of the Accounting Firm shall be paid solely Payments have occurred, or such earlier time as is requested by the Company. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive’s applicable federal income tax return would not result in the imposition of a negligence or similar penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iii) below and a payment of any Excise Tax or any interest, penalty or addition to tax related thereto is determined to be due, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and such underpayment and interest, penalty or addition to tax shall be promptly paid by the Company to the Internal Revenue Service in satisfaction of the Company’s original withholding obligations. In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive shall be responsible for the immediate repayment to the Company of such overpayment with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or state income tax purposes. Within two (iii) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service that, if successful, would require the payment of the Excise Tax. Such notification shall be given as soon as practicable but no later than ten (102) business days after the Executive such notice is informed in writing of such claim by the Internal Revenue Service and the notification shall apprise the Company of the nature of the claim and the date on which such claim is required to be paid. The Executive shall not pay such claim prior given to the expiration of a 30-day period following the date on which the Executive has given such notification to the Company (or such shorter period ending on the date that any payment of taxes with respect to such claim is required). If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall: (A) give the Company any information reasonably requested by the Company relating to such claim; (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company; (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 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 to the Executive, for any Excise Tax or income tax (including interest and penalties with respect thereto) imposed as a result of such contest. Without limitation on the foregoing provisions of this Section 2.1(f), the Company shall control all proceedings taken in connection with such contest and, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings and conferences with instruct the taxing authority in respect of such claim and may, at its sole option, either direct Accounting Firm to timely provide 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 or in one or more appellate courts, as the Company shall determine.data required by this Subsection IV(e)(ii)

Gross-Up Payments. (i) Anything in this Agreement to the contrary notwithstanding, in In the event that it shall any payment(s) or the value of any benefit(s) received or to be determined that any payment received by the Company to Executive in connection with Executive’s Termination or for the benefit contingent upon a Change of the Executive Control (whether paid received or payable or distributed or distributable to be received pursuant to the terms of this Agreement (the "Agreement Payments") or otherwise but determined without regard to of any additional payments required under this Section 2.1(f)other plan, arrangement or agreement of the Company, its successors, any person whose actions result in a Change of Control, or any person affiliated with any of them (or which, as a result of the completion of the transaction(s) causing a Change of Control, will become affiliated with any of them) (a “Payment”) would "Other Payments" and, together with the Agreement Payments, the "Payments")), are determined, under the provisions of Subsection IV(e)(ii), to be subject to the an excise tax imposed by Code Section 4999 of the Code (or any successor provision) 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 as determined in this Subsection IV(e), 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 by Executive, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes)federal, includingstate, without limitation, any and local income taxes (and any interest or penalties imposed with respect thereto) employment tax and Excise Tax imposed payable by Executive upon the Gross-Up PaymentPayment(s) provided for by this Subsection IV(e)(i), the and any interest, penalties or additions to tax payable by Executive retains an amount of the Gross-Up Payment on an after-tax basis with respect thereto shall be equal to the Excise Tax imposed upon on the Payment. Any Payments (the "Gross-Up Payment required under this Section 2.1(f) shall be made on the April 1 of each of the three years immediately following the year in which the Date of Termination occurredPayment(s)"). The intent of the parties is that the Company shall be responsible in full for, and shall pay, any and all Excise Tax on any Payments and Gross-up Up Payment(s) and any income and all excise and employment taxes (including, without limitation, penalties and interest) imposed on any Gross-up Up Payment(s) as well as any loss of deduction caused by or related to the Gross-up Up Payment(s). (ii) Subject to the provisions of Section 2.1(f)(iii), all All determinations required to be made under this Section 2.1(fSubsection IV(e), including including, without limitation, whether and when a Gross-up Up Payment is required required, and the amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such determinations, unless otherwise set forth in this Agreement, shall be made by the outside a nationally recognized certified public accounting firm that then audits selected by the Company’s financial statements Company and reasonably acceptable to Executive (the “"Accounting Firm”"). For purposes of determining the amount of any Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made, and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s residence on the Termination Date, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. The Company shall cause the Accounting Firm shall to provide detailed supporting calculations both to the Company and to the Executive within fifteen (15) business days of receipt of after notice from is given by Executive to the Company that any or all of the Executive that there has been Payments have occurred, or will be a Paymentsuch earlier time as is requested by the Company. In Within two (2) business days after such notice is given to the event that Company, the Company shall instruct the Accounting Firm is serving as to timely provide the accountant or auditor for the Person effecting the Change in Control, the Executive shall appoint another nationally recognized accounting firm data required by this Subsection IV(e)(ii) to make the determinations required hereunder (which accounting firm shall then be referred to as the “Accounting Firm” hereunder)Executive. All fees and expenses of the Accounting Firm shall be paid solely in full by the Company. Any Gross-Up Payment as determined pursuant to this Subsection IV(e)(ii) shall be paid by the Company to the Executive within five (5) business days after receipt of the Accounting Firm’s determination, net of applicable withholding taxes. If the Accounting Firm determines that there is substantial authority (within the meaning of Section 6662 of the Code) that no Excise Tax is payable by the Executive, it the Accounting Firm shall furnish the Executive with a written opinion that failure to disclose or report the Excise Tax on the Executive’s applicable federal income tax return would will not constitute a substantial understatement of tax or be reasonably likely to result in the imposition of a negligence or similar any other penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in the absence of a material mathematical or legal error. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm hereunder, it is possible that the Gross-Up Payments will not have been made by the Company that should have been made or that the Gross-Up Payments will have been made that should not have been made, in each case case, consistent with the calculations required to be made hereunder. In the event that the Company exhausts its remedies pursuant to Section 2.1(f)(iiiSubsection IV(e)(iii) below and Executive is thereafter required to make a payment of any Excise Tax or any interest, penalty penalties or addition to tax related thereto is determined to be duethereto, the Accounting Firm shall determine the amount of the underpayment of Excise Taxes that has occurred and any such underpayment and interest, penalty penalties or addition to tax shall be promptly paid by the Company to the Internal Revenue Service Executive along with such additional amounts described in satisfaction of the Company’s original withholding obligationsSection (IV)(e)(i). In the event that the Accounting Firm determines that an overpayment of Gross-Up Payment(s) has occurred, the Executive any such overpayment shall be responsible treated for the immediate repayment all purposes as a loan to the Company of such overpayment Executive with interest at the applicable federal rate provided for in Section 7872(f)(2) of the Code, due and payable within ninety (90) days after written demand to Executive by the Company; provided, however, that the Executive shall have no duty or obligation whatsoever to repay such overpayment loan if Executive’s receipt of the overpayment, or any portion thereof, is included in the Executive’s income and the Executive’s repayment of the same is not deductible by the Executive for federal or and state income tax purposes. (iii) The Executive shall notify the Company in writing of any claim of which Executive is aware by the Internal Revenue Service or state or local taxing authority, that, if successful, would require the payment result in any Excise Tax or an underpayment of the Excise Taxany Gross-Up Payment(s). Such notification notice shall be given as soon as practicable but no later than ten fifteen (1015) business days after the Executive is informed in writing of such the claim by the Internal Revenue Service taxing authority and the notification Executive shall apprise provide written notice of the Company of the nature of the claim claim, the administrative or judicial appeal period, and the date on which such any payment of the claim is required to must be paid. The Executive shall not pay such any portion of the claim prior to the expiration of a the thirty (30-) day period following the date on which the Executive has given gives such notification notice to the Company (or such shorter period ending on the date that any payment of taxes with respect to such amount under the claim is requireddue). If the Company notifies the Executive in writing prior to the expiration of such thirty (30) day period that it desires to contest such the claim, the Executive shall: (A) : give the Company any information reasonably requested by the Company relating to such the claim; (B) ; take such action in connection with contesting such the claim as the Company shall reasonably request in writing from time to time, including without limitation, accepting legal representation with respect to such concerning the claim by an attorney reasonably selected by the Company; (C) Company who is reasonably acceptable to Executive; and 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 including, without limitation, additional interest and penaltiespenalties and attorneys’ fees) incurred in connection with such contest, contests and shall indemnify and hold the Executive harmless, on an after-tax basis to the Executivebasis, for any Excise Tax or income tax (including including, without limitation, interest and penalties with respect theretothereon) imposed as a result of such contestrepresentation. Without limitation on upon the foregoing provisions of this Section 2.1(fSubsection IV(e)(iii), except as provided below, the Company shall control all proceedings taken in connection with concerning such contest and, at in its sole optionopinion, may pursue or forgo forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect pertaining to the claim. At the written request of such claim the Company and may, upon payment to Executive of an amount at its sole option, either direct least equal to any amount necessary to obtain the Executive to pay jurisdiction of the tax claimed appropriate taxing authority and xxx for a refund or contest the claim in any permissible mannerrefund, and the Executive agrees to prosecute such in cooperation with the Company any contest of a claim to a determination before any administrative tribunal, in a court of initial jurisdiction or and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company requests Executive to pay the claim and xxx for a refund, the Company shall advance the amount of such payment to Executive, on an interest-free basis, and shall indemnify and hold Executive harmless on an after-tax basis, from any Excise Tax or income tax (including, without limitation, interest and penalties thereon) imposed on such advance or for any imputed income on such advance. Any extension of the statute of limitations relating to assessment of any Excise Tax for the taxable year of Executive which is the subject of the claim is to be limited solely to the claim. Furthermore, the Company’s control of the contest shall be limited to issues for which a Gross-Up Payment would be payable hereunder. Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority. (iv) If after the receipt by Executive of an amount advanced by the Company pursuant to Subsection IV(e)(iii) above, Executive receives any refund of a claim or any additional amount that was necessary to obtain jurisdiction, Executive shall promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by Executive of an amount advanced by the Company pursuant to Subsection IV(e)(iii) above, a determination is made that Executive shall not be entitled to any refund of the claim, and the Company does not notify Executive in writing of its intent to contest such denial of refund of a claim prior to the expiration of thirty (30) calendar days after such determination, then the portion of such advance attributable to a claim shall be forgiven by the Company and shall not be required to be repaid by Executive. The amount of such advance attributable to a claim shall offset, to the extent thereof, the amount of the underpayment required to be paid by the Company to Executive.