Common use of Gross-Up Provision Clause in Contracts

Gross-Up Provision. (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (herein all collectively referred to as the “Total Payments”), would constitute an “excess parachute payment,” the Company shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 18) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to the Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that after payment by the net Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after inclusion of the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or 's adjusted gross income. (3b) otherwiseSubject to the provisions of Section 18(a), within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion all determinations required to choose the tax year in which the be made under this Section 18, including whether and when a Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoingis required, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paidthe assumptions to be utilized in arriving at such determinations, shall be reduced made by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice public accounting firm selected by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G is one of the Code, five largest public accounting firms in the Executive and United States (the Company, at the Company’s expense, "Accounting Firm") which shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 18 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. If As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such National Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code and any penalties payable by the Executive) shall be promptly paid by the Company to or for the benefit of the Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax Counsel so has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the opinion required by this Excise Tax." 5. A new Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as 23 is hereby added to the reasonableness of any item of compensation Agreement to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder.read as follows:

Gross-Up Provision. (ia) Notwithstanding any other provision of this Agreement, if any portion of In the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or event that the payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or benefits provided for prior to the Covered Termination in this Agreement (herein all collectively such payments and benefits hereinafter referred to as “Payments”) constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Total PaymentsCode”), would constitute an “excess parachute payment,” be subject to the Company shall pay Executive an additional amount excise tax imposed by Section 4999 of the Code (the “Excise Tax”), and the aggregate value of such Payments, as determined in accordance with Section 280G of the Code and the Treasury Regulations thereunder is less than the product obtained by multiplying 3.59 by Executive’s “base amount” within the meaning of Code Section 280G(b)(3), then such Payments shall be reduced to the extent necessary (but only to that extent) so that no portion of such Payments will be subject to the Excise Tax. Alternatively, in the event that the Payments constitute “parachute payments” within the meaning of Section 280G of the Code, the Payments would be subject to the Excise Tax, and the aggregate value of the Payments, as determined in accordance with Section 280G of the Code and the Treasury Regulations thereunder is equal to or greater than the product obtained by multiplying 3.59 by Executive’s “base amount” within the meaning of Code Section 280G(b)(3), then Executive shall receive (i) a payment from the Company sufficient to pay such excise tax plus any interest or penalties incurred by Executive with respect to such excise tax, plus (ii) an additional payment from the Company sufficient to pay the excise tax and federal and state income and employment taxes arising from the payments made by the Company to Executive pursuant to this sentence (together, the “Excise Tax Gross-Up Payment”). Notwithstanding anything to the contrary set forth herein, the maximum amount of the Excise Tax Gross - Up Payment which the Company shall be obligated to pay shall be one time the Executive’s base salary. (b) For purposes of determining whether any of the Payments will be subject to the Excise Tax and the amount of such that the net amount retained Excise Tax: (i) any other payments or benefits received or to be received by Executive after deduction in connection with transactions contemplated by a Change in Control, including Executive’s termination of employment (whether pursuant to the terms of this Agreement or any excise other plan, arrangement or agreement with the Company), shall be treated as “parachute payments” within the meaning of Section 280G of the Code or any similar or successor provision, and all “excess parachute payments” within the meaning of Section 280G or any similar or successor provision shall be treated as subject to the Excise Tax, unless in the opinion of tax imposed under counsel selected by the Company such other payments or benefits (in whole or in part) do not constitute parachute payments, or such parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 4999 280G (or any similar or successor provision of the Code, any interest charges or penalties ) in respect excess of the imposition base amount within the meaning of such excise tax Section 280G (but not or any federal, state similar or local income taxsuccessor provision of the Code), or employment taxsuch Payments are otherwise not subject to the Excise Tax; (ii) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon amount of the payment provided for by this Section 9(c), Payments which shall be treated as subject to the Excise Tax shall be equal to the Total Payments. lesser of (a) the total amount of the Payments or (b) the amount of the excess parachute payments within the meaning of Section 280G; and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be made by the accounting firm that is the Company’s outside tax accountants at the time of such determination, which firm must be reasonably acceptable to Executive (the “Accounting Firm”) in accordance with the principles of Section 280G of the Code. (c) For purposes of determining the amount of the Excise Tax Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Excise Tax 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 domicile for income tax purposes residence on the date the Excise Tax Gross-Up Payment is to be made, net of the maximum permissible reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The . (d) In the event that the Excise Tax is subsequently determined to be less than the amount taken into account under this Section 3, Executive shall repay to the Company shall pay (promptly following the time at which the amount of such reduction in Excise Tax is finally determined the portion of the Excise Tax Gross-Up Payment attributable to such reduction (plus the portion of the Excise Tax Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Excise Tax Gross-Up Payment being repaid by Executive if such repayment results in a reduction in Excise Tax and/or a federal, state or local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. (e) In the event that the Excise Tax is subsequently determined to exceed the amount taken into account under this Section 3 (including by reason of any payment the existence or amount of which cannot be determined at the time of the Excise Tax Gross-Up Payment: (1) if ), the Executive is terminated as described in Section 2, as soon as practicable after the Company shall make an additional Excise Tax Gross-Up Payment amount is determined, but no later than 2 1/2 months following in respect of such excess (plus any interest payable with respect to such excess at the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described rate provided in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(11274(b)(2)(B) of the Code. For purposes ) promptly following the time at which the amount of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be excess is finally determined by the Company’s independent auditors in accordance with the principles of set forth in this Section 280G(d)(33. (f) and (4) of the Code (or any successor provisions), which determination All determinations required to be made under this Section 3 shall be evidenced in a certificate made by the Accounting Firm. The Company shall cause the Accounting Firm to provide detailed supporting calculations of such auditors addressed its determinations to the Company and the Executive. The opinion All fees and expenses of National Tax Counsel the Accounting Firm shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required borne solely by this Section 9(c), the Executive and the Company shall obtain, at the Company. The Accounting Firm’s expense, and determinations must be made with substantial authority (within the National Tax Counsel may rely on, the advice meaning of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G 6662 of the Code and the regulations thereunderCode).

Gross-Up Provision. (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (herein all collectively referred to as the “Total Payments”), would constitute an “excess parachute payment,” the Company shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 9(c), the 11 Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such amounts as are then due to Executive under this Agreement.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the “Code”) (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total PaymentsExcise Tax”), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the a “Gross-Up Payment”) in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income. Executive and the Company shall use their best efforts to mitigate the cost to the Company of making a Gross-up Payment: . (1b) if Subject to the Executive is terminated as described in provisions of Section 27(a), as soon as practicable after the all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment amount is determinedrequired, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paidthe assumptions to be utilized in arriving at such determinations, shall be reduced made by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice public accounting firm that is retained by the Company as of the date immediately prior to the Executive of its belief that there is a payment change in ownership or benefit due control (the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax CounselAccounting Firm”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the Executivereceipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). The opinion In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change in ownership or control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of National Tax Counsel the Accounting Firm shall be addressed to borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment under this Section 7 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. If As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such National Underpayment (together with interest at the rate provided in Section 1274(b) (2) (B) of the Code and any penalties payable by Executive) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274 (b) (2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax Counsel so has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunderExcise Tax.

Gross-Up Provision. (i) Notwithstanding In the event that any other provision payment or benefit received or to be received by the Employee in connection with a Change in Control of the Company or the termination of the Employee's employment, whether such payments or benefits are received pursuant to the terms of this Agreement, if any portion of the Termination Payment, Accrued Benefits Agreement or any other payment plan, arrangement or benefit under this Agreementagreement with the Company, or payments to and for the benefit of the Executive under any other agreement or plan person whose actions result in a Change in Control of the Company or any of its Affiliates, regardless of whether person affiliated with the Company or such payment or benefit was paid or provided for prior to the Covered Termination person (herein all collectively referred to as the “such payments and benefits being hereinafter called "Total Payments”"), would constitute an “excess parachute payment,” be subject (in whole or part) to the Company shall pay Executive an additional amount tax (the “Gross-Up Payment”"Excise Tax") such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), any interest charges or penalties the Company shall pay to the Employee such additional amounts (the "Gross-Up Payment") as may be necessary to place the Employee in respect the same after-tax position as if no portion of the imposition Total Payments had been subject to the Excise Tax. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder, the Employee shall repay to the Company, at the time that the amount of such excise reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to the reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax (but not any imposed on the Gross-Up Payment being repaid by the Employee to the extent that such repayment results in a reduction in Excise Tax and/or federal, state or local income tax, or employment taxtax deduction) plus interest on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon amount of such repayment at the payment rate provided for by this in Section 9(c), shall be equal 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to the Total Payments. For purposes of determining exceed the amount taken into account hereunder (including by reason of any payment the existence of which cannot be determined at the time of the Gross-Up Payment, Executive the Company shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the make an additional Gross-Up Payment is to be made and state and local income taxes in respect of such excess (plus any interest, penalties or additions payable by the Employee with respect of such excess) at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes time that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executivefinally determined. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 9(c), the Executive Employee and the Company shall obtain, at each reasonably cooperate with the Company’s expense, and other in connection with any administrative or judicial proceedings concerning the National existence or amount of liability for Excise Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunderTotal Payments.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up Payment: up Payment in the Executive's adjusted gross income. (1b) if Subject to the Executive is terminated as described in provisions of Section 27(a), as soon as practicable after the all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment amount is determinedrequired, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paidthe assumptions to be utilized in arriving at such determinations, shall be reduced made by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice public accounting firm that is retained by the Company as of the date immediately prior to the Executive of its belief that there is a payment change in ownership or benefit due control (the Executive "Accounting Firm") which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the Executivereceipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). The opinion In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change in ownership or control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of National Tax Counsel the Accounting Firm shall be addressed to borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment under this Section 7 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. If As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such National Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code and any penalties payable by Executive) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax Counsel so has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunderExcise Tax.

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the "Code") (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of the Executive (whether pursuant to the terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 21) (the "Payments") would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total Payments”"Excise Tax"), would constitute an “excess parachute payment,” then the Company shall pay to the Executive an additional amount payment (the “a "Gross-Up Payment”") in an amount such that after payment by the net Executive of all taxes (including any Excise Tax) imposed upon the Gross-Up Payment, the Executive retains an amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-Up Payment in the Executive's adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-Up Payment is to be made. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and made, (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after inclusion of the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or 's adjusted gross income. (3b) otherwiseSubject to the provisions of Section 21(a), within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion all determinations required to choose the tax year in which the be made under this Section 21, including whether and when a Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoingis required, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paidthe assumptions to be utilized in arriving at such determinations, shall be reduced made by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice public accounting firm selected by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G is one of the Code, five largest public accounting firms in the Executive and United States (the Company, at the Company’s expense, "Accounting Firm") which shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed provide detailed supporting calculations both to the Company and the Executive within fifteen (15) business days of the receipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the "Determination"). All fees and expenses of the Accounting Firm shall be borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-Up Payment under this Section 21 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on the Executive's applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. If As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment") or Gross-Up Payments are made by the Company which should not have been made ("Overpayment"), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such National Underpayment (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code and any penalties payable by the Executive) shall be promptly paid by the Company to or for the benefit of the Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274(b)(2) of the Code) shall be promptly paid by the Executive (to the extent he has received a refund if the applicable Excise Tax Counsel so has been paid to the Internal Revenue Service) to or for the benefit of the Company. The Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the opinion required by this Excise Tax." 5. A new Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as 22 is hereby added to the reasonableness of any item of compensation Agreement to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder.read as follows:

Gross-Up Provision. (ia) Notwithstanding Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any other provision payment, award, benefit or distribution (or any acceleration of this Agreementany payment, if award, benefit or distribution) by the Company (or any portion of its affiliated entities) or any entity which effectuates a change in ownership or control described in Section 280G of the Termination PaymentInternal Revenue Code of 1986, Accrued Benefits as amended (the “Code”) (or any other payment of its affiliated entities) to or benefit under this Agreement, or payments to and for the benefit of Executive (whether pursuant to the Executive terms of this Agreement or otherwise, but determined without regard to any additional payments required under any other agreement or plan this Section 7) (the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Company Code or any of its Affiliatesinterest or penalties are incurred by Executive with respect to such excise tax (such excise tax, regardless of whether together with any such payment or benefit was paid or provided for prior to the Covered Termination (herein all interest and penalties, are hereinafter collectively referred to as the “Total PaymentsExcise Tax”), would constitute an “excess parachute payment,” then the Company shall pay to Executive an additional amount payment (the a “Gross-Up Payment”) in an amount such that the net amount retained after payment by Executive after deduction of all taxes (including any excise tax Excise Tax) imposed under Section 4999 upon the Gross-Up Payment, Executive retains an amount of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be Gross-Up Payment equal to the Total Paymentssum of (x) the Excise Tax imposed upon the Payments and (y) the product of any deductions disallowed because of the inclusion of the Gross-up Payment in Executive’s adjusted gross income and the highest applicable marginal rate of federal income taxation for the calendar year in which the Gross-up Payment is to be made. For purposes of determining the amount of the Gross-Up up Payment, the Executive shall be deemed to (i) pay federal income tax and employment taxes at the highest marginal rate rates of federal income and employment taxation in for the calendar year in which the Gross-Up Payment is to be made and (ii) pay applicable state and local income taxes at the highest marginal rate of taxation for the calendar year in the state and locality of Executive’s domicile for income tax purposes on the date which the Gross-Up up Payment is to be made, net of the maximum reduction in federal income taxes that may which could be obtained from the deduction of such state and local taxes. The Company shall pay taxes and (iii) have otherwise allowable deductions for federal income tax purposes at least equal to those which could be disallowed because of the inclusion of the Gross-Up up Payment in the Executive’s adjusted gross income. Executive and the Company shall use their best efforts to mitigate the cost to the Company of making a Gross-up Payment: . (1b) if Subject to the Executive is terminated as described in provisions of Section 27(a), as soon as practicable after the all determinations required to be made under this Section 7, including whether and when a Gross-Up Payment amount is determinedrequired, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paidthe assumptions to be utilized in arriving at such determinations, shall be reduced made by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice public accounting firm that is retained by the Company as of the date immediately prior to the Executive of its belief that there is a payment change in ownership or benefit due control (the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax CounselAccounting Firm”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed provide detailed supporting calculations both to the Company and Executive within fifteen (15) business days of the Executivereceipt of notice from the Company or the Executive that there has been a Payment, or such earlier time as is requested by the Company (collectively, the “Determination”). The opinion In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group effecting the change in ownership or control, Executive may appoint another nationally recognized public accounting firm to make the determinations required hereunder (which accounting firm shall then be referred to as the Accounting Firm hereunder). All fees and expenses of National Tax Counsel the Accounting Firm shall be addressed to borne solely by the Company and the Company shall enter into any agreement requested by the Accounting Firm in connection with the performance of the services hereunder. The Gross-up Payment under this Section 7 with respect to any Payments shall be made no later than thirty (30) days following such Payment. If the Accounting Firm determines that no Excise Tax is payable by Executive, it shall furnish Executive with a written opinion to such effect, and to the effect that failure to report the Excise Tax, if any, on Executive’s applicable federal income tax return will not result in the imposition of a negligence or similar penalty. The Determination by the Accounting Firm shall be binding upon the Company and the Executive. If As a result of the uncertainty in the application of Section 4999 of the Code at the time of the Determination, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (“Underpayment”) or Gross-up Payments are made by the Company which should not have been made (“Overpayment”), consistent with the calculations required to be made hereunder. In the event that the Executive thereafter is required to make payment of any Excise Tax or additional Excise Tax, the Accounting Firm shall determine the amount of the Underpayment that has occurred and any such National Underpayment (together with interest at the rate provided in Section 1274(b) (2) (B) of the Code and any penalties payable by Executive) shall be promptly paid by the Company to or for the benefit of Executive. In the event the amount of the Gross-up Payment exceeds the amount necessary to reimburse the Executive for his Excise Tax, the Accounting Firm shall determine the amount of the Overpayment that has been made and any such Overpayment (together with interest at the rate provided in Section 1274 (b) (2) of the Code) shall be promptly paid by Executive (to the extent he has received a refund if the applicable Excise Tax Counsel so has been paid to the Internal Revenue Service) to or for the benefit of the Company. Executive shall cooperate, to the extent his expenses are reimbursed by the Company, with any reasonable requests by the Company in connection with any contests or disputes with the Internal Revenue Service in connection with the opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunderExcise Tax.

Gross-Up Provision. (i) Notwithstanding any other provision of this Agreement, if any portion of the Termination Payment, Accrued Benefits or any other payment or benefit under this Agreement, or payments to and for the benefit of the Executive under any other agreement or plan of the Company or any of its Affiliates, regardless of whether such payment or benefit was paid or provided for prior to the Covered Termination (herein all collectively referred to as the “Total Payments”), would constitute an “excess parachute payment,” the Company shall pay Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by Executive after deduction of any excise tax imposed under Section 4999 of the Code, any interest charges or penalties in respect of the imposition of such excise tax (but not any federal, state or local income tax, or employment tax) on the Total Payments, and any federal, state and local income tax, employment tax, and excise tax upon the payment provided for by this Section 9(c), shall be equal to the Total Payments. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income tax and employment taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive’s domicile for income tax purposes on the date the Gross-Up Payment is made, net of the maximum reduction in federal income taxes that may be obtained from the deduction of such state and local taxes. The Company shall pay the Gross-Up Payment: (1) if the Executive is terminated as described in Section 2, as soon as practicable after the Gross-Up Payment amount is determined, but no later than 2 1/2 months following the year in which the Change in Control of the Company occurs; (2) if the Executive is terminated as described in Section 8 and is a Specified Employee, on the first day of the seventh (7th) month following the month in which the Executive’s Separation from Service occurs; or (3) otherwise, within ninety (90) days following the Employee’s Separation from Service; provided that the Executive shall not have discretion to choose the tax year in which the Gross-Up Payment shall be made if the calendar year ends during such 90-day period. Notwithstanding the foregoing, if the Executive is required to pay the excise tax imposed under Section 4999 of the Code prior to the applicable payment date for the Gross-Up Payment describe hereinabove (such as, for instance, because other payments due to the Executive without regard to this Agreement cause the excise tax to be due), then the Company shall promptly reimburse the Executive for the amount of excise taxes paid by the Executive under Section 4999 of the Code, plus an amount equal to the additional taxes imposed on the Executive due to the Company’s reimbursement of the excise tax and such additional taxes. In no event shall the payment described in this paragraph be paid to the Executive later than the end of the calendar year following the year in which the Executive remits such taxes. In such event, the Gross-Up Payment, if and when paid, shall be reduced by the payment previously made to the Executive under this paragraph. (ii) For purposes of this Agreement, the terms “excess parachute payment” and “parachute payments” shall have the meanings assigned to them in Section 280G of the Code and such “parachute payments” shall be valued as provided therein. Present value for purposes of this Agreement shall be calculated in accordance with Section 280G(d)(4) of the Code (or any successor provision). Promptly following a Covered Termination or notice by the Company to the Executive of its belief that there is a payment or benefit due the Executive which will result in an excess parachute payment as defined in Section 280G of the Code, the Executive and the Company, at the Company’s expense, shall obtain the opinion (which need not be unqualified) of nationally recognized tax counsel (“National Tax Counsel”) selected by the Company’s independent auditors and reasonably acceptable to the Executive (which may be regular outside counsel to the Company), which opinion sets forth (i) the amount of the Base Period Income; (ii) the amount and present value of Total Payments; (iii) the amount and present value of any excess parachute payments; and (iv) the amount of any Gross-Up Payment. As used in this Agreement, the term “Base Period Income” means an amount equal to the Executive’s “annualized includible compensation for the base period” as defined in Section 280G(d)(1) of the Code. For purposes of such opinion, the value of any noncash benefits or any deferred payment or benefit shall be determined by the 11 Company’s independent auditors in accordance with the principles of Section 280G(d)(3) and (4) of the Code (or any successor provisions), which determination shall be evidenced in a certificate of such auditors addressed to the Company and the Executive. The opinion of National Tax Counsel shall be addressed to the Company and the Executive and shall be binding upon the Company and the Executive. If such National Tax Counsel so requests in connection with the opinion required by this Section 9(c), the Executive and the Company shall obtain, at the Company’s expense, and the National Tax Counsel may rely on, the advice of a firm of recognized executive compensation consultants as to the reasonableness of any item of compensation to be received by the Executive solely with respect to its status under Section 280G of the Code and the regulations thereunder. Within five (5) days after the National Tax Counsel’s opinion is received by the Company and the Executive, the Company shall pay (or cause to be paid) or distribute (or cause to be distributed) to or for the benefit of Executive such amounts as are then due to Executive under this Agreement.